Petition for Writ of Certiorari — Melodio Reyes, Petitioner v. United States

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 19-40555

Summary Calendar

FILED

April 6, 2020

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MELODIO REYES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:19-CR-423-l

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Melodio Reyes pleaded guilty to transporting an alien within the United

States for private financial, gain, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii),

(a)(l)(A)(v)(II), (a)(l)(B)(i). He was sentenced to 33 months in prison and three

years of supervised release. Reyes timely filed a notice of appeal.

On appeal, Reyes asserts that the district court erred when it adopted

the calculation of his criminal history score in the Presentence Report (PSR).

* Pursuant to 5TH ClR. 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

ClR. R. 47.5.4.

No. 19-40555

Specifically, Reyes argues that a^l99lj Texas

conviction for burglary of a

building and q^2013}Louisiana conviction for battery of a pol ice officer should

not have been counted towards his criminal history score.

We review this unpreserved issue for plain error. See Puckett v. United

States, 556 U.S. 129, 135 (2009); see also Davis v. United States, No. 19-5421,

2020 WL 1325819 (U.S. Mar. 23, 2020). Reyes’s PSR, which the district court

adopted, provided an adequate evidentiary basis for the existence of Reyes’s

/l991 Texas convictimjj and 2013 Louisiana conviction. See United States

v.

Harris, 702 F.3d 226, 230 (5th Cir. 2012). Reyes does not present arguments

or point to evidence demonstrating that the PSR’s information is unreliable or

inaccurate.

He also has not asserted at any time that he was not in fact

convicted in 1991 for burglary or in 2013 for battery.

Moreover, at his

sentencing hearing, Reyes acknowledged that he reviewed the PSR with his

attorney and when asked whether “everything appeared] to be correct in the”

PSR, he replied, “[y]es.” Under these circumstances, Reyes has shown no error,

and certainly no clear or obvious error.

See Puckett, 556 U.S. at 135.

Accordingly, the judgment of the district court is affirmed.

Reyes’s

motion for appointment of new counsel is denied. See FIFTH CIRCUIT PLAN

Under the Criminal Justice Act, § 5(B).

AFFIRMED; MOTION TO APPOINT NEW COUNSEL DENIED.

tfofe} U)rd/% ftior Cmoh/7<*&

2

United States District Court

Southern District of Texas

United States

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

MCALLEN DIVISION

p

FILEOctober 16, 2019

OCT 1

Bradley.Clerk

David J. Bradley, Clerk

MELODIO REYES

§

§

Movant,

§

§

VS.

UNITED STATES OF AMERICA

Respondent.

CIVIL ACTION NO. 7:19-CV-00355

CRIM ACTION NO. 7:19-CR-00423-l

§

§

§

§

REPORT AND RECOMMENDATION

Movant Melodio Reyes, a federal prisoner proceeding pro se, initiated this action by

filing a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.1 (Civ. Dkt.

No. 1).

This case was referred to the undersigned magistrate judge for report and

recommendation pursuant to 28 U.S.C. § 636(b).

After a careful review of the record and relevant law, the undersigned respectfully

recommends that Movant’s § 2255 motion (Civ. Dkt. No. 1) be DENIED and this civil action be

DISMISSED without prejudice as premature. Finally, it is recommended that a certificate of

appealability be DENIED and the case be closed.

I.

BACKGROUND

On March 12, 2019, a grand jury in the Southern District of Texas, McAllen Division,

returned a three-count indictment charging Movant with: (1) conspiring to transport aliens within

the United States; (2) knowingly transporting an alien, Silanderson De Aquino-Bautista, within

f

the United States for the purpose of commercial advantage and private financial gain; (3)

1 The undersigned notes that Movant refers to his filing as a “Petition for Post-Conviction Relief pursuant

to 28 U.S.C. § 2254,” citing the appropriate statute for state prisoners. (Civ. Dkt. No. 1 at 1). Because

Movant is a federal prisoner, the undersigned construes Movant’s filing to be a § 2255 motion. The

undersigned finds that a warning pursuant to Castro v. United States, 540 U.S. 375 (2003), is not

necessary because the undersigned recommends that this action be dismissed without prejudice.

1 /4

n

United States Court ofAppeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE \V. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

April 20, 2020

#09838023

Mr. Melodio Reyes

FCI Beaumont Medium

P.O. Box 26040

Beaumont, TX 77720-6040

No. 19-40555

USA v. Melodio Reyes

USDC No. 7:19-CR-423-1

Dear Mr. Reyes,

We will take no action on your Petition for Rehearing. Only your

court appointed attorney can file motions or other documents on

your behalf. By copy of this letter to your attorney, I am advising

him to review your documents on pur docket, for whatever action he

deems necessary.

Sincerely,

LYLE. W. CAYCE,

Clerk

■74x7'—C_-

c-

/

By:

Jann M. Wynne, Deputy Clerk

504-310-7688

cc:

Mr. Roberto Balli

Ms. Carmen Castillo, Mitchell

Mr. John A. Reed

Utfr /A. {Z$fd/\£l

United States Court ofAppeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

November 18, 2019

#09838023

Mr. Melodio Reyes

FCI Beaumont Medium Security

P.O. Box 26040

Beaumont, TX 77720

No. 19-40555

USA v Melodio Reyes

.USDCNo. 7 :19-CR-423-1

/

Pear Mr. Reyes,

We will take no action on your motion to amend the record. Only

your attorney can file motions or other documents on your behalf.

Your attorney is advised to review the motion on our dpcket sheet,

for whatever action he deems necessary.

Sincerely,

LYLE W. CAYCE, Clerk

By:

Jann M. Wynne,Deputy Clerk

504-310-7688

cc:

Mr. Roberto Balli

Ms. Carmen Castillo Mitchell

Mr. John A. Reed

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERIC

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

December 26, 2019

#09838023

Mr. Melodio Reyes

FCI Three Rivers Jim Wells Unit

U.S. Highway 72, W., P.O. Box 4200

Three Rivers, TX 78071-0000

No. 19-40555

USA v. Melodio Reyes

USDC No. 7:19-CR-423-1

Dear Mr. Reyes,

17. "

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*4.

'

■

-

We will.take no action on your letter dated December 19, 2019.

As you were previously advised in the November 18, 2019 letter,

only your attorney can file motions or other documents on your

behal.f.

In light of this, I am taking no action on the letter.

Your attorney is advised to review the letter on our docket, for

whatever action he deems necessary.

Sincerely,

LYLE W. CAYCE, Clerk

■ By:

___________________________

Jann'M. Wynne, Deputy Clerk

504-310-7688

cc:

Mr. Roberto Balli

Ms. Carmen Castillo Mitchell

Mr. John A. Reed