     Case: 16-20825      Document: 00514177899         Page: 1    Date Filed: 09/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 16-20825                               FILED
                                  Summary Calendar                     September 29, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUBEN GONZALEZ-ROCHA, also known as Ruben Rocha Gonzalez, also
known as Ruben Gonzalez, also known as Ruben Rocha, also known as Hugo
Gonzalez, also known as Jorge Luis Garcia, also known as Ruben Garcia
Rocha,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-306-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Ruben Gonzalez-Rocha pleaded guilty to illegal
reentry of a deported alien and was sentenced within the advisory guidelines
range to 29 months of imprisonment and a two-year term of supervised release.
On appeal, Gonzalez-Rocha argues that the district court incorrectly assessed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20825    Document: 00514177899     Page: 2   Date Filed: 09/29/2017


                                 No. 16-20825

one criminal history point to his March 2003 conviction for assault causing
bodily injury to a family member because the conviction was too remote in time
to be counted under U.S.S.G. § 4A1.2(e).
      Gonzalez-Rocha correctly concedes that review is for plain error. To
show plain error, he must show a forfeited error that is clear or obvious and
that affects his substantial rights. 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 should do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      At a minimum, Gonzalez-Rocha has not satisfied the third and fourth
prongs of the plain error test. As to whether his substantial rights were
affected, his criminal history category and guidelines range remain the same
after subtraction of the contested criminal history point. Gonzalez-Rocha thus
fails to demonstrate “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).
      Finally, we “do not view the fourth prong as automatic if the other three
prongs are met,” but will exercise our discretion when “a miscarriage of justice
would otherwise result.” United States v. Escalante-Reyes, 689 F.3d 415, 425
(5th Cir. 2012) (en banc) (internal quotation marks and citation omitted).
Gonzalez-Rocha does not even attempt to demonstrate that he can meet this
standard, and there is nothing in the record to indicate that we should exercise
our discretion to correct any error.
      AFFIRMED.




                                          2
