     Case: 14-40177      Document: 00512974665         Page: 1    Date Filed: 03/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40177
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 19, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GASTON DE LA TORRE-DE LA TORRE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1760-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Gaston De La Torre-De La Torre pleaded guilty to being found
unlawfully present in the United States following deportation. The district
court sentenced De La Torre-De La Torre to 57 months in prison, at the bottom
of the 57 to 71-month guidelines range set forth in the sentencing transcript.
For the first time on appeal, De La Torre-De La Torre argues that the district
court erred in calculating his criminal history category. Because he did not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40177

object on this ground in the district court, we review the claim for plain error.
De La Torre-De La Torre thus must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion
to correct the error but will do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      The Government acknowledges that the district court committed error
when it added one point to De La Torre-De La Torre’s criminal history score
based on his Illinois conviction for armed violence. See U.S.S.G. § 4A1.1(a), (e),
and cmt. n.5 (2013); U.S.S.G. § 4A1.2(a)(2) (2013). Even with clear error in the
calculation of De La Torre-De La Torre’s criminal history score, we must
determine whether the error affected De La Torre-De La Torre’s substantial
rights. See Puckett, 556 U.S. at 135. In order to show that error affected his
substantial rights, De La Torre-De La Torre must “show a reasonable
probability that, but for the district court’s error, [he] would have received a
lower sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
      Absent the assessed criminal history point, De La Torre-De La Torre
would have accrued six criminal history points (rather than seven), resulting
in a criminal history category of III (rather than IV) and an advisory guidelines
range of 46 to 57 months in prison (rather than 57 to 71). Because his sentence
falls within both guidelines ranges, De La Torre-De La Torre must point to
“additional evidence” in the record, other than the difference in ranges, to show
an effect on his rights. United States v. Pratt, 728 F.3d 463, 481-82 (5th Cir.
2013), cert. denied, 134 S. Ct. 1328 (2014). He has not done so. Accordingly,
he has not established plain error warranting reversal by this court. See
Puckett, 556 U.S. at 135.




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                                No. 14-40177

      De La Torre-De La Torre also argues that an error in the guidelines
calculations should be considered presumptively prejudicial. He concedes,
however, that the issue is foreclosed by our precedent and that he is raising
the argument only to preserve it for further review.
      AFFIRMED.




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