     Case: 17-41227       Document: 00514685749         Page: 1     Date Filed: 10/17/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                     No. 17-41227                            FILED
                                   Summary Calendar                   October 17, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MARIO ESTRADA-MARTINEZ, also known as Gerardo Delarosa-Mendoza,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-832-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Mario Estrada-Martinez challenges his sentence, claiming the district
court lacked the authority to order the sentence to run consecutive to two other
pending federal sentences. As discussed infra, review is only for plain error.
       In November 2009, Estrada pleaded guilty to illegal reentry in violation
of 8 U.S.C. § 1326(a) and (b). He was mistakenly removed from the United
States later that month, while awaiting sentencing. In July 2017, Estrada was


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                    No. 17-41227

arrested on state charges in Texas. He was also charged in district court with
a new illegal-reentry offense, and with violating the terms of his supervised
release.
       For the 2009 illegal-reentry offense, the district court sentenced Estrada
to, inter alia, 125 months’ imprisonment, and ordered the term of
imprisonment to run consecutive to the not-yet-imposed sentences in the two
pending federal proceedings. Estrada did not object to the sentence.
       Shortly after Estrada was sentenced in the instant case, a different
district court sentenced Estrada in the two proceedings that were pending
when Estrada was sentenced in this case. Estrada was sentenced to, inter alia,
71-months’ imprisonment for the new illegal-reentry conviction, to run
partially-concurrent with, and partially-consecutive to, the sentence in the
instant case, for a total sentence of no more than 150-months’ imprisonment.
Estrada was also sentenced to, inter alia, 18-months’ imprisonment on the
revocation of his supervised release, to run consecutive to the sentence for his
new     illegal-reentry    conviction,   for   a   total   sentence   of   89-months’
imprisonment. Estrada did not appeal either judgment.
       Because Estrada did not raise this consecutive-sentences issue in district
court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Estrada must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the reversible plain error, but should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
       A district court lacks the authority to order its sentence to run
consecutive to a pending federal sentence. United States v. Quintana-Gomez,
521 F.3d 495, 498 (5th Cir. 2008) (interpreting 18 U.S.C. § 3584). Therefore,



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                                  No. 17-41227

the district court plainly erred in ordering the instant sentence to run
consecutive to the two anticipated, but not-yet-imposed, federal sentences. See
United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014).
      Nevertheless, as provided above, Estrada must show the error affected
his substantial rights. To meet his burden, he must show “how the error in
this case, the offending order, affected the ultimate outcome, the length and
terms of the sentence that [he] will serve”. Id. at 453. Estrada, however, has
not shown the error affected his substantial rights because he does not explain
how the error affected the second district court’s sentencing decisions or the
length and terms of his imprisonment; and, as our court explained in Nava,
the error, standing alone, is insufficient to show an effect on substantial rights.
See id.
      AFFIRMED.




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