U.S. v. Morales-Pitones

Full title: UNITED STATES of America, Plaintiff-Appellee v. Guillermo MORALES-PITONES…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 25, 2009

335 F. App'x 441 (5th Cir. 2009)

Opinion

No. 06-41374 Summary Calendar.

June 25, 2009.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Thelma O. Garcia, Law Office of Thelma O. Garcia, Harlingen, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 1:05-CR-1065-ALL.

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:[fn*] [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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Guillermo Morales-Pitones (Morales), appeals his sentence of 82 months of imprisonment for illegally reentering the United States after deportation. As his sole issue, Morales challenges the district court's denial of his request for an offense level reduction for acceptance of responsibility. He notes that, at trial, he contested only the question of his alienage and that he conceded the other elements of the offense of illegal reentry.

Alienage is one of the elements of an offense under § 1326. See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-1132 (5th Cir. 1993). By challenging at trial whether he was an alien, Morales contested one of the essential factual elements of the offense of illegal reentry and put the Government to its burden of proof as to this element. The district court's determination that Morales was not entitled to an adjustment for acceptance of responsibility was not "without foundation." United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003); see U.S.S.G. § 3E1.1, comment, (n. 2).

AFFIRMED.