     Case: 15-40866      Document: 00513407831         Page: 1    Date Filed: 03/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-40866                                  FILED
                                  Summary Calendar                            March 7, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE DE JESUS GONZALEZ-PEREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:14-CR-1759


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Jose De Jesus Gonzalez-Perez pleaded guilty to an indictment charging
him with being unlawfully found in the United States after having been
previously denied admission, excluded, deported and removed. In calculating
Gonzalez-Perez’s departure sentence, the district court found that Gonzalez-
Perez’s criminal history was underrepresented pursuant to U.S.S.G. § 4A1.3,
based on the fact that he had five prior apprehensions for illegal entry, and
that the circumstances surrounding Gonzalez-Perez’s prior sexual contact

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40866   Document: 00513407831      Page: 2    Date Filed: 03/07/2016


                                  No. 15-40866

conviction was a matter that the Sentencing Commission had not considered
pursuant to § 5K2.0(a)(2)(B). Accordingly, the district court made an upward
adjustment to Gonzalez-Perez’s sentence, effectively increasing his criminal
history category from II to VI and his offense level from six to eight. Gonzalez-
Perez did not object, and the district court sentenced Gonzalez-Perez within
the post-departure range to 24 months of imprisonment, which was the
statutory maximum for the subject offense.
       In the sole issue he raises on appeal, Gonzalez-Perez argues that the
district court erred in making the upward adjustment because it did not
employ the proper methodology set forth in United States v. Lambert, 984 F.2d
658 (5th Cir. 1993), and did not adequately explain the reasons underlying the
upward departure. To demonstrate plain error, Gonzalez-Perez 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, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.
Id.
       Even if we assume for the sake of argument that the district court erred
in making the upward adjustment, we cannot say that such an error affected
Gonzalez-Perez’s substantial rights. After imposing the departure sentence,
the district court made it abundantly clear that, even if it had imposed the
upward departure in error, it would have imposed the same sentence based
upon its consideration of the 18 U.S.C. § 3553(a) factors and Gonzalez-Perez’s
criminal history and personal circumstances. Thus, Gonzalez-Perez cannot
show that his substantial rights were affected by the district court’s departure
sentence. United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010).
       AFFIRMED.



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