    Case: 16-50151    Document: 00513898504    Page: 1   Date Filed: 03/06/2017




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

                                No. 16-50151
                                                                           Fifth Circuit

                                                                         FILED
                                                                     March 6, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

FLORENCIO ROSALES-MIRELES,
 Also Known as Roberto Lozano-Alcauter,

                                          Defendant–Appellant.




                Appeal from the United States District Court
                     for the Western District of Texas




Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Florencio Rosales-Mireles appeals his sentence for illegal reentry. He
contends that the district court erred by counting one of his prior convictions
twice when calculating the sentencing-guideline range. He also maintains that
the sentence is substantively unreasonable. Finding no reversible error, we
affirm.
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                                  No. 16-50151
                                        I.
      Rosales-Mireles pleaded guilty of illegal reentry in violation of 8 U.S.C.
§ 1326(a) and (b)(2). When calculating the criminal-history score, the proba-
tion officer counted a 2009 Texas conviction of misdemeanor assault twice,
assessing two criminal-history points each time it was counted. The total
criminal-history score was calculated as 13, resulting in a criminal-history
category of VI.   Combined with Rosales-Mireles’s offense level of 21, that
criminal-history category yielded a guideline range of 77–96 months.

      Rosales-Mireles did not object to the double-counting but did request a
downward departure to 41 months. The district court denied the departure
and sentenced Rosales-Mireles to 78 months of imprisonment and a three-year
term of supervised release. Rosales-Mireles did not object to the sentence after
it was imposed.

                                        II.
      Rosales-Mireles assigns error to the double-counting. He concedes that
he did not make that objection in district court, so we apply the plain-error
standard. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To
establish plain error, Rosales-Mireles must show (1) an error; (2) that was
clear or obvious; and (3) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). “[I]f the above three prongs are satisfied, [we
have] the discretion to remedy the error—discretion which ought to be exer-
cised only if the error seriously affects the fairness, integrity or public reputa-
tion of judicial proceedings.” Id. (quotation marks and alterations omitted).

                                        A.
      The government concedes that the double-counting is error, and we
agree. The sentencing guidelines provide that two criminal-history points be

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                                      No. 16-50151
added “for each prior sentence of imprisonment of at least sixty days . . . .” U.S.
Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.1 (emphasis added). By add-
ing four points based on the same conviction, the court erred. Moreover, “the
error is clear from the language of the Guidelines.” 1 Thus, Rosales-Mireles
satisfies the first two prongs.

                                             B.
       To satisfy the third prong, Rosales-Mireles must show “a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
he would have received a lesser sentence.” 2 “When a defendant is sentenced
under an incorrect Guidelines range . . . the error itself can, and most often
will, be sufficient to show a reasonable probability of a different outcome
absent the error.” Molina-Martinez, 136 S. Ct. at 1345. But “[t]he Government
remains free to point to parts of the record—including relevant statements by
the judge—to counter any ostensible showing of prejudice the defendant may
make.” Id. at 1347 (quotation marks omitted and alteration adopted).

       Had the district court not erred by double-counting Rosales-Mireles’s
misdemeanor-assault conviction, the guideline range would have been 70–87
months instead of 77–96 months as recommended in the presentence report.
Nonetheless, the government contends that the court would have sentenced
Rosales-Mireles to the same term of imprisonment even if it had not erred by
double-counting. The government notes that the district court stated that it
“would have not sentenced [Rosales-Mireles] to anything less than the



       1 United States v. Espinoza, 677 F.3d 730, 736 (5th Cir. 2012). See also United States
v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010), abrogated on other grounds by Molina-Martinez
v. United States, 136 S. Ct. 1338 (2016) (“As our conclusion is reached by a straightforward
application of the guidelines, the error was also plain.”).
       2United States v. Martinez-Rodriguez, 821 F.3d 659, 663–64 (5th Cir. 2016) (quoting
United States v. Pratt, 728 F.3d 463, 481 (5th Cir. 2013) (citation omitted)).
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                                       No. 16-50151
78 months.”

       But that statement, in context, does not go quite so far as saying that the
court would have sentenced Rosales-Mireles to 78 months regardless of the
guideline recommendation. The full statement is this: “I’ll let the record re-
flect that under the consideration 4A1.3, when I look at the elements, I would
have not sentenced Mr. Rosales to anything less than the 78 months after
he’s—his conduct in these cases and his conduct here today.”

       The explanation was made in the context of denying a downward depar-
ture under U.S.S.G. § 4A1.3. Moreover, the denial was based, in part, on
Rosales-Mireles’s criminal history, and that history—because of the double-
counting—erroneously included an extra conviction. Thus, we cannot say that
the district court “explicitly and unequivocally indicate[d] that [it] would have
imposed the same sentence . . . irrespective of the Guidelines range.” 3 Rosales-
Mireles has met his burden, under the third prong, to show a reasonable proba-
bility that he would have been subject to a different sentence but for the error.

                                              C.
       Even though Rosales-Mireles has satisfied the first three prongs, we
must decide whether to exercise our discretion to remedy the error. We do so
only where “the error seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings.” 4 “The fourth prong . . . is not satisfied simply
because the ‘plainly’ erroneous sentencing guideline range yields a longer
sentence than the range that, on appeal, we perceive as correct.” United States




       3United States v. Miller, 657 F. App’x 265, 270 (5th Cir. 2016) (per curiam). See also
United States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011) (per curiam).
       4 United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting
Puckett, 556 U.S. at 135 (alteration in original)).
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                                       No. 16-50151
v. Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). 5 Rather, “[t]he types
of errors that warrant reversal are ones that would shock the conscience of the
common man, serve as a powerful indictment against our system of justice, or
seriously call into question the competence or integrity of the district judge.”
United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (quotation marks
omitted). 6

       We decline to exercise our discretion in this case. We sometimes exercise
discretion to correct a plain error where the imposed sentence is “materially or
substantially above the properly calculated range.” United States v. John,
597 F.3d 263, 289 (5th Cir. 2010). 7 But we also have declined to use that dis-
cretion even where the discrepancy was huge. 8 Where the difference between
the imposed sentence and the properly calculated range is small, we generally
decline to correct the error. 9

       Here, there is no discrepancy between the sentence and the correctly



       5 See also United States v. Wooley, 740 F.3d 359, 369 (5th Cir. 2014) (“This circuit has
repeatedly emphasized that even when we find that the first three factors have been estab-
lished, this fourth factor is not automatically satisfied.”) (quotation marks omitted); United
States v. Ellis, 564 F.3d, 370, 378 (5th Cir. 2009) (“Not every error that increases a sentence
need be corrected by a call upon plain error doctrine.”).
       6Accord United States v. Mendoza-Velasquez, 847 F.3d 209, 213 (5th Cir. 2017) (per
curiam) (citing United States v. Scott, 821 F.3d 562, 571 (5th Cir. 2016)).
       7 See, e.g., John, 597 F.3d at 285–86 (exercising discretion to correct a sentence
21 months outside the correct range); United States v. Hernandez, 690 F.3d 613, 621–22 (5th
Cir. 2012) (exercising discretion to correct a sentence 12 months outside the correct range);
Mudekunye, 646 F.3d at 290–91 (exercising discretion to correct a sentence 19 months outside
the correct range).
       8In United States v. Wikkerink, 841 F.3d 327, 337 (5th Cir. 2016), we declined relief
under the fourth prong despite that the “correct sentence according to the Guidelines would
have been 180 months [but] the district court ultimately imposed a sentence of 360 months.”
       9 See, e.g., United States v. Avalos-Martinez, 700 F.3d 148, 154 (5th Cir. 2012) (per
curiam) (declining to exercise discretion where the imposed sentence exceeded the correct
range by only one month); United States v. Emanuel-Fuentes, 639 F. App’x 974, 977 (5th Cir.
2015) (per curiam) (same).
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                                        No. 16-50151
calculated range. The court sentenced Rosales-Mireles to 78 months, which is
in the middle of the proper range of 70–87 months. We cannot say that the
error or resulting sentence would shock the conscience. Thus, we elect not to
exercise our discretion.

                                              III.
       Rosales-Mireles contends that his sentence is substantively unreasona-
ble because it is greater than necessary to effect the goals of 18 U.S.C.
§ 3553(a). Rosales-Mireles did not object to reasonableness in the district
court, so we review only for plain error. 10

       A within-guidelines sentence is entitled to a presumption of reasonable-
ness, and “[t]he presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009). Rosales-Mireles’s 78-month sentence is within-
guidelines, as it is within the overlap of the correct (70–87 months) and incor-
rect (77–96 months) ranges. It is therefore presumed reasonable. Id.

       Rosales-Mireles has not rebutted the presumption. He maintains that
the district court placed too much weight on his old, prior convictions. But the
court considered that argument during sentencing and rejected it. The court
explicitly considered a number of the § 3553(a) factors, including the nature of
the offense; Rosales-Mireles’s history and characteristics; and the need to
protect the public, deter future criminal conduct, and promote respect for the



       10 Rosales-Mireles notes that “[t]here is a circuit split as to whether a failure to object
to the reasonableness of the sentence upon its imposition requires plain error review.” He
acknowledges that his argument is foreclosed, see Peltier, 505 F.3d at 391–92, and he raises
it only to preserve it for further review.
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                                  No. 16-50151
law.     In addition, the court noted that this was Rosales-Mireles’s second
conviction for being in the United States illegally, that he had used multiple
aliases to remain in the United States, and that he had a history of assault
stretching from 2001 to 2015.

        The district court was in the best position to evaluate Rosales-Mireles’s
history and characteristics and the need for the sentence to further the objec-
tives in § 3553(a). See Gall v. United States, 552 U.S. 38, 51–52 (2007). Accord-
ingly, the decision is entitled to deference. Id. Rosales-Mireles has not re-
butted the presumption of reasonableness.

        The judgment of sentence is AFFIRMED.




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