USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 1 of 22

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 24-4122

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JAVIER IVAN CHAVEZ DOMINGUEZ, a/k/a Javier Ivan Chavez-Dominguez, a/k/a Javier Chavez Dominguez,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:23-cr-00255-WO-1)

Argued: December 12, 2024 Decided: February 6, 2025

Before AGEE, THACKER, and BERNER, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Thacker and Judge Berner joined.

ARGUED: Sarah Marie Powell, Durham, North Carolina, for Appellant. Julie Carol Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Sandra J. Hairston, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 2 of 22

AGEE, Circuit Judge:

In August 2022, Javier Chavez Dominguez was arrested on various state drug

charges in North Carolina. After his identity and criminal history were confirmed, he was

charged with Illegal Reentry after Removal Subsequent to Conviction for Aggravated

Felony, in violation of

(a), (b)(2). Dominguez ultimately pleaded guilty

and was sentenced to an upward variant sentence of 48 months’ incarceration, to be

followed by three years of supervised release. Dominguez now appeals that sentence,

offering new arguments that he did not make before the district court. Because we discern

no reversible error in the district court’s handling of this matter, we affirm.

I.

A.

Dominguez, a citizen of Mexico, first entered the United States with his family in

2005 when he was 12 years old. Since then, he has established a lengthy record of

deportations from and subsequent reentries into the United States. That record began in

2012, when Dominguez was encountered in Maricopa County, Arizona, while in

possession of over 60 grams of black tar heroin, two handguns, and over $8,000 in U.S.

currency. He was not immediately prosecuted for those offenses; instead, he was placed

into removal proceedings and charged with remaining in the United States longer than

permitted as a nonimmigrant. Soon thereafter, an Immigration Judge (“IJ”) granted

2 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 3 of 22

Dominguez voluntary departure, with an alternate order of removal to Mexico. The next

day, Dominguez voluntarily departed the United States.

Then, in December 2014, Dominguez was encountered by Customs and Border

Patrol (“CBP”) agents in Arizona who transferred him to local custody on the outstanding

state warrant for the 2012 drug offenses. Dominguez pleaded guilty in Arizona state court

to Felony Possession of Narcotic Drugs for Sale, and in January 2015, was sentenced to a

suspended sentence—three months of probation with a condition of six months’

imprisonment. Later that year, Dominguez was ordered removed from the United States by

an IJ. He waived his appeal rights and departed the United States on foot.

In December 2017, CBP agents again encountered Dominguez while he was

unlawfully present in Arizona. They reinstated his previous order of removal. He then

pleaded guilty in the United Stated District Court for the District of Arizona to

misdemeanor illegal entry in violation of

(a)(1) and was sentenced to 180

days in prison. After serving his sentence, Dominguez was once again removed to Mexico

in June 2018.

Finally, in August 2022, Dominguez was encountered in Winston-Salem, North

Carolina, in possession of distribution quantities of fentanyl. He attempted to flee from

police, but was ultimately arrested and charged with two counts of Felony Trafficking

Opium or Heroin, Misdemeanor Resisting Public Officer, and Misdemeanor Possession of

Drug Paraphernalia. 1 The day of his arrest, an officer from Immigration and Customs

1 Dominguez also initially gave the police a fake name—Luis. 3 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 4 of 22

Enforcement (“ICE”) filed a federal criminal complaint charging Dominguez with Illegal

Reentry after Removal Following Conviction of an Aggravated Felony, in violation of

(a), (b)(2). This was Dominguez’s third illegal reentry to the United States

in less than a decade.

B.

Following his arrest in 2022, Dominguez faced both North Carolina state and federal

criminal proceedings. The state proceedings took place first, with Dominguez pleading

guilty in November 2022 to two counts of Felony Attempted Trafficking of Opium or

Heroin, Misdemeanor Resisting Public Officer, and Misdemeanor Possession of Drug

Paraphernalia. He was sentenced on those charges to a consolidated sentence of 10 to 21

months’ imprisonment.

Upon release from state custody, Dominguez was detained in ICE custody until his

arrest on the federal warrant. The federal proceedings—which eventually gave rise to this

appeal—formally began in June 2023 when ICE officials filed a criminal complaint against

Dominguez. That complaint was later superseded by a one-count indictment returned by a

federal grand jury in July 2023. The indictment charged Dominguez with one count of

Illegal Reentry after Removal Subsequent to Conviction for an Aggravated Felony, in

violation of

(a), (b)(2). The “aggravated felony” conviction was specified

in the indictment as the January 2015 Arizona conviction for Possession of Narcotic Drugs

for Sale. And the “removal” element of the indictment referred to both the September 2015

and June 2018 removals.

4 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 5 of 22

Dominguez did not file any motions in the proceedings below, and in November

2023, entered a guilty plea to the indictment pursuant to a written plea agreement. At the

plea hearing, Dominguez attested to the accuracy of the factual basis submitted by the

Government. That factual basis outlined, among other things, Dominguez’s prior charges

and removal proceedings.

Prior to sentencing, a probation officer prepared a presentence investigation report

(“PSR”) for Dominguez. The PSR reflected that he faced a statutory maximum

imprisonment of 20 years, pursuant to

(b)(2), because his prior removal

was subsequent to a conviction for an aggravated felony—the 2015 Arizona conviction for

Possession of Narcotic Drugs for Sale. Dominguez’s base offense level was enhanced by

four levels for committing a felony offense before being deported or removed for the first

time—the Arizona offense—and six levels for committing a felony offense after being

ordered deported or removed for the first time—the North Carolina offense. After a

reduction for acceptance of responsibility, his total offense level was computed to be 15.

The PSR also reflected three convictions that counted for the purposes of criminal history

points: the 2015 Arizona conviction for Felony Possession of Narcotic Drugs for Sale (2

points), the 2017 federal conviction for Misdemeanor Illegal Reentry (2 points), and the

2022 North Carolina conviction for Felony Attempted Trafficking Opium or Heroin (3

points). These prior convictions produced a total criminal history score of seven, resulting

in a criminal history category of IV. With a total offense level of 15 and a criminal history

category of IV, Dominguez’s advisory Guidelines range was 30 to 37 months. Notably, he

did not object to any aspect of the PSR.

5 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 6 of 22

At the sentencing hearing in February 2024, the district court confirmed that there

were no objections to the final PSR, and consequently adopted it without change. Next, it

heard the parties’ arguments on the applicability of the

(a) factors.

Defense counsel argued for a mid-range sentence, highlighting Dominguez’s educational

attainment, strong family ties, and efforts to financially support his three young children.

The Government requested a high-end sentence, emphasizing his failure to be deterred by

prior removals, as well as his pattern of committing drug offenses in the United States.

After weighing all the relevant facts and factors, the district court imposed an

upward variant sentence of 48 months incarceration, to be followed by three years of

supervised release. In imposing this sentence, the district court emphasized the seriousness

of the offense (i.e., that it involved multiple unlawful reentries and drug distribution

activity), as well as the need to protect the public, deter future crime, and promote respect

for the law.

Judgment was entered on February 26, 2024. This appeal followed two days later.

The Court has jurisdiction pursuant to

and 3742(a).

II.

Dominguez raises four main challenges on appeal. First, he argues that his 2015

Arizona conviction for Possession for Sale of Narcotic Drugs does not qualify as an

“aggravated felony” such as to subject him to the enhanced penalties applicable under

(b)(2). Second, he contends that the September 2015 removal and June 2018

6 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 7 of 22

reinstatement that form the basis of his § 1326(a) conviction violated his due process rights

because he claims they were the product of expedited removal proceedings. Third, he

asserts that the district court erroneously calculated his Sentencing Guidelines range by

including his 2022 North Carolina conviction both as part of its criminal history calculation

and as the basis for an offense level enhancement. And fourth, Dominguez argues that the

district court’s imposition of an upward variant sentence was substantively unreasonable.

Because Dominguez concededly did not raise these objections before the district

court, we review only for plain error. 2 See Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.”). To establish plain error, Dominguez “must show that (1) an error was made,

(2) the error was plain, and (3) the error affected his substantial rights.” United States v.

Nelson,

, 966 (4th Cir. 2022). And “[e]ven then, we will exercise our discretion

to correct such an error only if declining to do so ‘would result in a miscarriage of justice

or would otherwise seriously affect the fairness, integrity or public reputation of judicial

proceedings.’”

(quoting United States v. Green,

, 185 (4th Cir. 2021)).

For the reasons explained below, we are satisfied that the district court committed

no reversible error, much less any plain error.

To the extent a different standard of review is applicable—e.g., with respect to 2

Dominguez’s substantive reasonableness challenge—the Court will set out the standard. 7 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 8 of 22

A.

Dominguez first asserts as error the district court’s finding that his 2015 conviction

for Possession for Sale of Narcotic drugs qualifies as an aggravated felony. The district

court relied upon that finding in calculating his statutory maximum sentence. This

determination was not clearly erroneous.

The statute under which Dominguez was charged—8 U.S.C. § 1326(a)—prohibits

a noncitizen’s unauthorized return to the United States following deportation, removal,

exclusion, or denial of admission. The maximum statutory penalties for violating this

provision depend on the defendant’s prior criminal record. See § 1326(b). A noncitizen

with no criminal history is subject to a two-year maximum sentence. § 1326(a). But if the

noncitizen’s removal was after a conviction for either (a) “three or more misdemeanors

involving drugs, crimes against the person, or both”; (b) any non-aggravated felony; or (c)

certain other specified grounds, the statutory maximum becomes ten years. See

§ 1326(b)(1), (3)–(4). And if a noncitizen’s prior conviction was for an “aggravated

felony,” as defined by

(a)(43), the statutory maximum term of

imprisonment is twenty years. 3 § 1326(b)(2).

3 Relevant here, an “aggravated felony” includes “illicit trafficking in a controlled substance (as defined in section 802 of title 21), including a drug trafficking crime (as defined in section 924(c) of title 18).”

(a)(43)(B). Section 924(c)(2), in turn, defines a drug trafficking crime as “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).” And the Controlled Substances Act renders unlawful the possession of a controlled substance with intent to manufacture, distribute, or dispense the controlled substance.

(a)(1). 8 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 9 of 22

For the first time on appeal, Dominguez challenges the classification of his prior

Possession of Narcotic Drugs for Sale conviction as an aggravated felony. In his view, this

crime was not an aggravated felony, and the Court should apply the categorical approach

to correct the district court’s erroneous classification. If his claim is correct, then the

applicable statutory maximum at his sentencing would have been ten years rather than

twenty. See § 1326(b)(1)–(2). Ultimately, though, we need not resolve what was the proper

statutory maximum. Regardless of the merits of his argument, Dominguez has failed to

show that the alleged error affected his substantial rights. This failure dooms his challenge.

See Nelson, 37 F.4th at 966.

The primary impact of the district court’s “aggravated felony” determination is that

Dominguez was subject to a higher statutory maximum sentence than he otherwise would

have been. See § 1326(b)(1)–(2). But that alone is insufficient to establish that any

attendant error affected his substantial rights. In this regard, the Fifth Circuit’s decision in

United States v. Castaneda-Lozoya is instructive.

(5th Cir. 2016). There, the

Fifth Circuit faced a question almost identical to that presented here—whether the district

court had plainly erred in concluding that the defendant was subject to the enhanced

penalties under § 1326(b)(2), based upon his prior commission of an “aggravated felony.”

Id. at 460. In the end, the Fifth Circuit held that it was “unnecessary to analyze the

intricacies of the modified categorical approach[,]” because the defendant failed to show

that any “error affected his substantial rights.” Id. In so finding, it observed that “[i]f the

district court erred, it was in concluding that the statutory maximum for the offense was

twenty years when it should have been ten.” Id. But the defendant was sentenced well

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below both potential maximums, and was only able to argue that “the 20-year maximum

‘could well have influenced the district court’s selection of sentence.’” Id. (emphasis

added). Given the absence of any evidence suggesting that the potentially inflated statutory

maximum actually impacted the district court’s sentence, the Fifth Circuit held that the

defendant’s “speculation d[id] not support a finding of reversible plain error.” Id.

So too here. Dominguez is unable to set forth any evidence that the purportedly

erroneous twenty-year statutory maximum affected his substantial rights. In other words,

he has failed to “establish a reasonable probability of a different outcome—in this context,

a lower sentence—absent the [alleged] error.” Nelson, 37 F.4th at 969–70 (cleaned up).

And on this record, it’s not at all clear that he could do so. There is nothing in the sentencing

transcript to suggest that the attributed statutory maximum sentence—twenty years—had

any impact at all on the eventual sentence levied by the district court—four years. Rather,

the district court focused only on the impact of the properly calculated Sentencing

Guidelines, and the § 3553(a) factors. In fact, at sentencing, neither the district court nor

counsel ever referenced the twenty-year statutory maximum or the fact that Dominguez

committed an “aggravated felony.” 4 He is thus left only to speculate that the allegedly

improper statutory maximum sentence somehow impacted the sentence he received. Such

speculation is insufficient to support a finding of reversible plain error. Castaneda-Lozoya,

; see United States v. Hopkins,

(6th Cir. 2002) (finding

4 Further, as was the case in Castaneda-Lozoya, the four-year sentence imposed here falls well below both potentially applicable statutory maximums—i.e., ten years or twenty years. See Castaneda-Lozoya,

. 10 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 11 of 22

no plain error where the sentence imposed fell within both the correct and incorrect

statutory ranges, and the district court’s explanation for the sentence did not “even . . .

mention [] the statutory range”); United States v. McCloud,

(6th Cir.

2013) (same); cf. United States v. Watson,

, 1023–24 (D.C. Cir. 2007)

(finding plain error where the district court recited incorrect statutory maximum and

expressly based its sentence on that mistaken understanding); United States v. Payano,

, 196–98 (3d Cir. 2019) (same).

None of Dominguez’s contrary arguments have merit. For instance, he cites Nelson

for the proposition that an error in calculating the mandatory maximum sentence is of equal

severity to an error in the mandatory minimum sentence, and thus presumptively merits a

finding of plain error. But Nelson doesn’t say that. As noted in Nelson, a mandatory

minimum sentence makes it “so that the court has no discretion to go below what

it . . . believes to be the statutory floor.” Nelson, 37 F.4th at 970. So when a statutory

minimum is incorrectly calculated, and the sentence imposed is at or near that minimum,

we may presume that the same sentence would not have been imposed independent of the

erroneous calculation. See id. This makes good sense—the statutory minimum provides a

baseline below which the district court cannot deviate. If the sentence is at (or near) that

baseline, it is fair to assume “a reasonable probability of a different outcome—in this

context, a lower sentence—absent the [alleged] error.” Nelson, 37 F.4th at 969–70 (cleaned

up).

Nelson did not, however, purport to answer the question presented here—i.e.,

whether error may be presumed where the district court allegedly calculated an improper

11 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 12 of 22

statutory maximum. Indeed, it does not appear that any Fourth Circuit decision has

addressed this exact question. But guidance from sister circuits suggests that the answer is

a resounding no. See Castaneda-Lozoya,

; McCloud,

;

Watson, 476 F.3d at 1023–24; Payano, 930 F.3d at 194–96. Instead, something more is

needed. And that something more is a showing that the sentence imposed by the district

court was somehow impacted by the erroneously calculated statutory maximum. See, e.g.,

Castaneda-Lozoya,

(declining to find plain error where there was no

evidence that the incorrectly calculated statutory maximum influenced the district court’s

“selection of sentence”); Payano, 930 F.3d at 196–98 (finding plain error where there was

evidence that the incorrectly calculated statutory maximum influenced the district court’s

sentencing decision). Dominguez has failed to make such a showing here. 5

B.

The next issue raised on appeal concerns the constitutionality of Dominguez’s prior

removal proceedings. He contends that the September 2015 removal and June 2018

reinstatement that form the basis of his § 1326(a) conviction violated his due process rights

5 The closest Nelson gets to announcing the blanket rule preferred by Dominguez comes toward the end of the opinion: “In the ordinary case, . . . a miscalculation of a Guidelines range . . . will be enough to establish the necessary effect on substantial rights. . . . [T]he same, of course, must be true when a district court . . . incorrectly calculates a statutory sentencing range . . . so that the court has no discretion to go below what it mistakenly believes to be a statutory floor.” Nelson, 37 F.4th at 970 (cleaned up). But as this language makes clear, Nelson’s reasoning applies only to incorrectly calculated statutory minimums—i.e., ranges that the court lacks “discretion to go below.” Id. And for the reasons already discussed, an incorrectly calculated statutory maximum differs in kind and does not implicate the same concerns. 12 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 13 of 22

“because they appear to have been the product of an expedited removal proceeding.”

Opening Br. 18. But Dominguez waived the right to make this argument by unconditionally

pleading guilty.

When a defendant pleads guilty, he generally “waives all non[-]jurisdictional

defects in the proceedings conducted prior to entry of the plea, and thus has no non-

jurisdictional ground upon which to attack that judgment except the inadequacy of the

plea.” United States v. Lozano,

, 778 (4th Cir. 2020) (quoting United States v.

Fitzgerald,

(4th Cir. 2016)). Consequently, after pleading guilty, a

defendant may no longer “raise independent claims relating to the deprivation of

constitutional rights that occurred prior the entry of the guilty plea.” Blackledge v. Perry,

, 29–30 (1974) (cleaned up).

A narrow exception to this general rule permits post-plea claims that “challenge the

Government’s power to criminalize [the defendant’s] (admitted) conduct[,]” and that

“thereby call into question the Government’s power to constitutionally prosecute.” Class

v. United States,

, 181–82 (2018) (cleaned up); see Blackledge, 417 U.S. at

30–31 (holding that the defendant’s guilty plea didn’t bar his claim of vindictive

prosecution because the claim challenged “the very initiation of the proceedings against

[the defendant]” and implicated the defendant’s “right not to be haled into court at all

upon the . . . charge”); see also United States v. Chavez-Diaz,

, 1207–08 (9th

Cir. 2020) (holding that “constitutionally-based appeals—despite an unconditional plea—

” are permitted “where the appeal, if successful, would mean that the government cannot

prosecute the defendant at all” (emphasis in original)).

13 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 14 of 22

A straightforward application of these principles compels the conclusion that

Dominguez’s guilty plea bars any constitutional challenge to the validity of his prior

removals. 6 He does not “challenge the Government’s power to criminalize [his] (admitted)

conduct” or “call into question the Government’s power to constitutionally prosecute him”

under § 1326(a). Class, 583 U.S. at 181–82 (cleaned up). That is, Dominguez does not

challenge the Government’s power to “hale[] [him] into court at all upon . . . [this] charge,”

Blackledge,

(emphasis added), as is required to trigger the narrow exception

outlined above, see

at 29–30; Menna v. New York,

(1975); Class, 583

U.S. at 180–82. Instead, Dominguez’s challenge focuses solely upon “case-related

constitutional defects that occurred prior to the entry of the guilty plea”—i.e., the scope

and validity of the 2015 and 2018 removal proceedings. Lozano, 962 F.3d at 779. His guilty

plea rendered any such defects “irrelevant to the constitutional validity of the conviction.”

Class, 583 U.S. at 181 (internal quotations omitted). Accordingly, he is precluded from

now raising this issue on appeal. 7

6 Indeed, the Ninth Circuit reached the same conclusion on a similar set of facts. See Chavez-Diaz, 949 F.3d at 1207–10 (holding that the defendant’s guilty plea barred any potential due process challenge to his conviction under

(illegal entry)). 7 Other “case-related constitutional defects” that a defendant may not challenge post-guilty plea relate to whether evidence was obtained in violation of the Fourth Amendment, see Haring v. Prosise,

(1983); whether the indicting grand jury was unconstitutionally selected, see Tollett v. Henderson,

(1973); and whether the defendant’s Sixth Amendment speedy trial rights were violated, see Lozano, 962 F.3d at 778–80. Like each of these potential defects, the purportedly deficient removal proceedings here do not call into question the Government’s ability to criminalize the defendant’s conduct at all. See Class, 583 U.S. at 181–82. Instead, they relate to an aspect of this prosecution that is potentially problematic, i.e., “case-related” constitutional defects. 14 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 15 of 22

Dominguez resists this conclusion by, in large part, avoiding it. Rather than facing

it head on, he vaguely argues that the Government “fail[ed] to allege or proffer” sufficient

evidence to support his § 1326(a) conviction. Reply Br. 24. A review of the record belies

this claim. At the plea hearing, Dominguez “agree[d] with th[e] facts” proffered in the

“written factual basis” filed by the Government. J.A. 52. And that written factual basis

provided as follows: (1) in 2012, an IJ granted Dominguez voluntary departure with an

alternate order of removal to Mexico if he did not voluntarily depart; (2) he voluntarily

departed the United States on foot shortly thereafter; (3) in 2015, he was convicted of a

Class 2 Felony for Possession of Narcotic Drugs for Sale in Arizona; (3) following his

2015 conviction, he was “ordered removed from the United States to Mexico,” and was

removed the following day; (4) in 2017, he was again encountered in the United States, at

which point “designated officials . . . reinstated his order of removal”; (5) in 2018,

following a conviction for Illegal Entry in violation of

(a)(1), he was again

“removed from the United States to Mexico.” J.A. 29–32. On this record, we cannot say

that the district court erred, much less plainly erred, in concluding that for both the 2015

and 2018 removals, Dominguez departed or was removed from the United States while an

order of removal was outstanding. We therefore reject his arguments to the contrary.

C.

The third issue raised by Dominguez concerns whether the district court

procedurally erred in calculating his Sentencing Guidelines range. He maintains that it was

plainly erroneous for the district court to include his 2022 North Carolina conviction both

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as part of its criminal history calculation and as the basis for an offense level enhancement.

We disagree.

Because the crux of Dominguez’s argument relates to what constitutes “relevant

conduct” under U.S.S.G. § 1B1.3(a)(1), our inquiry begins there. Section 1B1.3(a)(1)

defines “relevant conduct” as “all acts and omissions committed . . . by the

defendant . . . that occurred during the commission of the offense of conviction or . . . in

the course of attempting to avoid detection or responsibility for” the offense of conviction.

Such “relevant conduct,” in turn, is to be included in the specific offense characteristics

portion of a defendant’s Guidelines calculation. U.S.S.G. § 1B1.3(a)(1). Importantly, if the

conduct underlying a prior conviction qualifies as “relevant conduct,” it cannot be

considered a “prior sentence” for the purposes of calculating the defendant’s criminal

history category. § 4A1.2 cmt. n.1. In other words, “relevant conduct” folds into the offense

of conviction; it cannot be used to externally enhance a defendant’s Sentencing Guidelines

(i.e., by inflating the defendant’s criminal history category). It can only be used to

internally enhance a defendant’s Sentencing Guidelines (i.e., via specific offence

characteristic enhancements).

Dominguez argues, again for the first time on appeal, that “at least one of [his] 2022

convictions (resisting a public officer by attempted flight) was ‘relevant conduct’” to his

illegal reentry conviction, and therefore “not countable for criminal history under

§ 4A1.2(a)(1),” nor for an enhancement “under § 2L1.2(b)(3)(c).” Reply Br. 31. Were this

argument raised sooner, we would consider it on the merits. But instead, we are constrained

by the deferential lens of plain error review. And viewing the record through that lens, we

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cannot discern plain error in the district court’s calculation of Dominguez’s offense level

and criminal history category.

To begin, Dominguez never proffered any evidence that his 2022 misdemeanor

conviction for resisting a public officer—who was trying to arrest him on a state drug

trafficking offense—was actually committed “in the course of or attempting to avoid

detection or responsibility for [the illegal reentry] offense.” § 1B1.3(a)(1). Rather, the only

evidence relating to that conviction comes from the PSR and the Government’s factual

proffer to which Dominguez did not object. And neither of those documents help his case.

The Government’s factual basis indicates only that Dominguez provided the arresting

officers with a fake name. The PSR provides similarly scant information, stating only that

he “resisted arrest by fleeing on foot” from the officer that was trying to arrest him on a

drug trafficking charge. J.A. 122. Moreover, the resistance charge was explicitly

consolidated with that drug charge. Dominguez attested to the accuracy of these factual

recitations, and even expressly declined to allege additional facts “in disagreement with the

factual information in the PSR.” J.A. 113. On this record, we cannot say that the district

court plainly erred in concluding that he did not flee from officers “in the course of or

attempting to avoid detection or responsibility for the [illegal reentry offense].”

§ 1B1.3(a)(1). 8

8 Indeed, with the little evidence we have, it is at least a similarly plausible reading of the record to instead conclude that Dominguez sought primarily to evade responsibility for the state drug trafficking and possession offenses—not the federal illegal reentry offense. § 1B1.3(a)(1). 17 USCA4 Appeal: 24-4122 Doc: 40 Filed: 02/06/2025 Pg: 18 of 22

The Fifth Circuit encountered a similar issue in United States v. Vargas-Garcia,

(5th Cir. 2005). 9 There, the court held that “[i]t was not plain error (if it was error

at all . . . ), for the district court to conclude that [the defendant’s] evasion of and resistance

to arrest after a traffic stop weeks before his indictment for illegal reentry was a separate

prior offense.”

. The Fifth Circuit continued by observing that the “evasion of and

resistance to arrest” could be “seen as embodying . . . conduct severable by time, place,

and harmed societal interest[,]” meaning that such conduct should not be lumped in with

the illegal reentry charge.

The same is true here, especially since the record suggests

that Dominguez sought primarily to evade responsibility for the state drug offense.

To be sure, there is also case law that could point in the other direction. See, e.g.,

United States v. Rivera-Gomez,

, 512–14 (9th Cir. 2011) (“[I]f [the defendant]

resisted arrest in order to ‘avoid detection or responsibility’ for the illegal reentry

offense . . . , and there is no other basis for holding that the resisting-arrest offense is not

relevant conduct to the crime of conviction, the district court erred in accounting for the

conduct as a prior sentence, rather than as part of the offense level.”); United States v.

White,

, 1319–20 (11th Cir. 2003) (holding that where the defendant “gave

a false name ‘to avoid detection or responsibility for [the illegal reentry] offense,’” the

district court “clearly erred” by assessing criminal history points for his “state false-

information conviction”); United States v. Butler,

(3d Cir. 2013)

(“If [the defendant] presented false identification to avoid detection as an illegal reentrant,

9 This Court has previously cited Vargas-Garcia with approval, albeit in slightly different circumstances. See United States v. Loza,

(4th Cir. 2014).

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that conduct was relevant within the meaning of § 1B1.3(a)(1).”). But those cases do not

alter the analysis here for two reasons.

First, in both Rivera-Gomez and White, the defendants (1) raised this issue before

the district court at sentencing and (2) laid at least some factual foundation to support their

arguments that their resistance was relevant conduct under § 1B1.3(a)(1). See Rivera-

Gomez, 634 F.3d at 509–10, 512–15; White,

, 1319–29. Neither of those

things happened here. And in Butler, the appellate court conducted a de novo review of the

issue because the district court’s conclusion rested on a “general construction” of the

Sentencing Guidelines. Butler,

. Here, we do not know what the district

court’s conclusion rested on because the defendant did not object to the Guidelines

calculation at sentencing. It could very well be that the district court simply found, as a

factual matter, that Dominguez resisted arrest to avoid detection for the state drug

trafficking charge—not the federal illegal reentry one. This case therefore does not neatly

map on to any of Rivera-Gomez, White, or Butler.

Second—and perhaps more importantly—none of the case law just discussed comes

from this Court or the Supreme Court. And for an “error to be plain and contrary to well-

settled law,” United States v. Faulkner,

, 678 (10th Cir. 2019) (internal

quotations omitted), typically either this Court or the Supreme Court must have addressed

the issue, United States v. Walker,

(4th Cir. 2019) (“In determining

whether the district court committed a plain error, . . . we consider only whether, at the

time of appellate consideration, the settled law of the Supreme Court or this circuit

establishes that an error has occurred.” (cleaned up)).

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At bottom, there is simply nothing in the record to support Dominguez’s new

argument that he resisted arrest to evade detection or responsibility for the illegal reentry

charge. Therefore, the district court did not plainly err in (1) implicitly concluding that the

conduct underlying Dominguez’s state conviction for resisting arrest was not “relevant

conduct” to his illegal reentry charge, and (2) relying upon that state conviction to both

apply an enhancement based on the specific characteristics of his illegal reentry offense

and calculate his criminal history category.

D.

The final issue Dominguez raises on appeal relates to the substantive reasonableness

of the district court’s upward variant sentence. He maintains that the variance imposed was

unreasonable and merits reversal. Once again, we disagree.

The reasonableness of a sentence is reviewed under the deferential

abuse-of-discretion standard. United States v. Torres-Reyes,

, 151 (4th Cir.

2020) (citing Gall v. United States,

(2007)). In conducting this review, we

first consider whether the district court committed any significant procedural error, such as

improperly calculating the Guidelines range, failing to consider the § 3553(a) factors, or

failing to adequately explain the chosen sentence. Gall,

. In the absence of

any procedural error, this Court considers the substantive reasonableness of the sentence,

“taking into account the totality of the circumstances.” United States v. McCain,

, 515 (4th Cir. 2020) (cleaned up).

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Where, as here, the sentence imposed is outside the advisory Guidelines range, this

Court considers “whether the sentencing court acted reasonably both with respect to its

decision to impose such a sentence and with respect to the extent of the divergence from

the sentencing range.” United States v. Nance,

, 215 (4th Cir. 2020) (cleaned

up). And when reviewing an upward variance, this Court “may consider the extent of the

deviation,” but must ultimately “give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. at 212 (cleaned up).

The substantive reasonableness inquiry here is straightforward. For the reasons

outlined above, the district court’s imposition of Dominguez’s upward variance sentence

was free of any procedural error. See Gall,

. Dominguez is thus left only to

argue that, “taking into account the totality of the circumstances,” the sentence imposed

was unreasonable. McCain, 974 F.3d at 515. This is a high bar, and one that Dominguez

cannot surmount. The district court expressly considered all the competing concerns here,

see J.A. 61–75 (outlining the defendant’s criminal history and emphasizing its skepticism

with his purported reasons for being in the United States), “wrestl[ed]” with the different

options it had, and ultimately imposed a sentence that represented an eleven-month

variance above the high end of the correctly calculated Guidelines, J.A. 71–72. Under these

circumstances, and in view of the “due deference” owed to the district court’s sentencing

decisions, Gall,

, we decline to disturb the sentence imposed below.

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III.

For the foregoing reasons, the district court’s judgment is affirmed.

AFFIRMED

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