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United States v. McLauling

United States Court of Appeals, Fifth Circuit

June 2, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
JORGE ALBERTO GOOD MCLAULING, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas.

For United States of America, Plaintiff - Appellee: Terri-Lei O'Malley, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For Jorge Alberto Good Mclauling, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

OPINION

Page 558

EDITH BROWN CLEMENT, Circuit Judge:

Jorge Alberto Good McLauling challenges on appeal the district court's multiple-count adjustment. For the following reasons, we AFFIRM.

Facts and Proceedings

Federal agents arrested McLauling in 2012 for illegal re-entry by a previously deported alien. Following his arrest, agents searched his apartment and found a revolver. McLauling admitted that he owned the gun. After indictment McLauling pleaded guilty in 2013, without a plea agreement, to (1) being found unlawfully present in the United States after deportation following conviction of a felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(1) (" count one" ), and (2) being an alien unlawfully present in the United States and in possession of a firearm previously transported in interstate or foreign commerce, in violation of 18 U.S.C. § § 922(g)(5), 924(a)(2) (" count two" ).

The PSR[1] determined the total offense level for count one to be 12, while the count two offense level was 16. The combined adjusted offense level under the multiple-count adjustment rules was 18. After an adjustment for acceptance of responsibility, the total offense level was 15. With a criminal history category of V, McLauling's sentencing range under the Guidelines was 37 to 46 months.

At sentencing, McLauling objected to the multiple-count adjustment, arguing that the offenses should be grouped pursuant to § 3D1.2 of the Sentencing Guidelines. The Government countered that the two offenses were separate and unrelated. The district court agreed with the Government, and overruled McLauling's objection. The district court sentenced McLauling to 46 months imprisonment on counts one and two, to be served concurrently, a two-year term of supervised release on each count, also to be served concurrently, and a $100 per count mandatory special assessment, which was remitted on the government's motion. The district court did not order payment of a fine. McLauling appealed.

Discussion

On appeal, McLauling reurges his argument that the district court erred by not grouping the offenses under § 3D1.2 of the Guidelines. Section 3D1.2 of the Guidelines provides that:

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same ...

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