     Case: 16-40886      Document: 00513878320         Page: 1    Date Filed: 02/16/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-40886                                   FILED
                                  Summary Calendar                          February 16, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAMUEL HERNANDEZ-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:15-CR-1462-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Samuel Hernandez-Rodriguez pleaded guilty to illegal reentry, and the
district court sentenced him to a within-guidelines sentence of 46-months in
prison.     Hernandez-Rodriguez argues that the district court committed
reversible procedural error when it failed to recognize that it had the authority
to grant his motion for a downward variance, which was based on then pending
amendments to the Sentencing Guidelines.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40886     Document: 00513878320      Page: 2     Date Filed: 02/16/2017


                                  No. 16-40886

      Because Hernandez-Rodriguez did not object on the basis that the
district court misapprehended its authority to impose a variance based on
upcoming amendments to the Sentencing Guidelines, our review is for plain
error. See United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012). To
prevail on plain error review, a defendant must identify (1) a forfeited error
(2) that is clear and obvious, and (3) that affects his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). If the defendant satisfies these first
three requirements, we may, in our discretion, remedy the error it the error
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
      Hernandez-Rodriguez argues that his position is supported by the
district court’s statement that district courts should apply the version of the
guidelines in place at the time of sentencing unless doing so creates an ex post
facto issue.   The district court stated as much after hearing Hernandez-
Rodriguez’s arguments for a variance and then deciding that it was “willing to
adhere to the provisions” of the 2015 Sentencing Guidelines. Moreover, the
district court correctly stated the law, as it was required to calculate
Hernandez-Rodriguez’s      guidelines   range    under      the   2015   Sentencing
Guidelines before deciding to whether or not to impose a variance. See Gall, v.
United States, 552 U.S. 38, 49 (2007); United States v. Rodarte-Vasquez, 488
F.3d 316, 322 (5th Cir. 2007).
      “Because the error, if there was error, is based on an ambiguous
statement, there can be no relief under the plain error standard.” United
States v. Ibarra-Zelaya, 465 F.3d 596, 607 (5th Cir. 2006). Accordingly, the
judgment of the district court is AFFIRMED.




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