UNITED STATES v. VILLANUEVA CARDENAS (2018)

Jose Villanueva-Cardenas appeals his eight-month prison sentence following the revocation of the supervised release term imposed as part of his 2015 sentence for illegal reentry. Villanueva-Cardenas argues that the district court proceedings violated Federal Rule of Criminal Procedure 32.1(a)(1) because he was held in custody for violating his supervised release yet was not promptly taken before a magistrate judge. As the parties agree, because Villanueva-Cardenas failed to raise this issue in the district court, it is subject to plain error review. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).

Villanueva-Cardenas has failed to show that it is clear or obvious that he was in custody for violating his supervised release during the 40 days in question. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). In any event, Villanueva-Cardenas has likewise failed to show that any alleged error, even if plain, affected his substantial rights. See id. The record shows that the district court reduced his consecutive prison sentence for his new illegal reentry offense to reflect credit for the 40 days at issue. The judgment of the district court is AFFIRMED.

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.