     Case: 16-41274       Document: 00514097759         Page: 1     Date Filed: 08/01/2017




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

                                                                                    FILED
                                     No. 16-41274                              August 1, 2017
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

GERMAN HERNANDEZ-LOPEZ, also known as Luis Carrasco,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-855-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       German Hernandez-Lopez pleaded guilty to being present illegally in the
United States after removal, in violation of 8 U.S.C. § 1326(a), (b). He was
sentenced, pursuant to a downward departure, to, inter alia, 37 months’
imprisonment, in part due to the district court’s assessing criminal-history
points for Hernandez’ 2007 Indiana conviction and sentence for illegal
consumption of alcohol by a minor, a Class C misdemeanor offense he


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-41274

committed at age 18. See Ind. Code § 7.1-5-7-7(a)(2); Ind. Code § 7.1-1-3-25
(2006) (defining “minor”). Hernandez maintains this conviction and sentence
should not have been considered in calculating his advisory Sentencing
Guidelines range because it was a “[j]uvenile status offense[]”, not to be
included pursuant to Guideline § 4A1.2(c)(2).
      As Hernandez concedes, he did not raise this issue in district court;
therefore, as he also concedes, review is only for plain error. E.g., United States
v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).            Under that standard,
Hernandez must show a forfeited plain (clear or obvious) error that affected
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he does so, we have the discretion to correct the reversible plain error, but
should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings”. Id.
      Guideline § 4A1.2(c)(2) lists “[j]uvenile status offenses and truancy”
among offenses that are “never counted” in calculating the advisory Guidelines
sentencing range. In determining whether an unlisted offense is similar to an
offense listed in § 4A1.2(c)(2), courts are to use “a common sense approach that
includes consideration of relevant factors”. U.S.S.G. § 4A1.2, cmt. n.12(A).
Factors to consider include:
      (i) a comparison of punishments imposed for the listed and unlisted
      offenses; (ii) the perceived seriousness of the offense as indicated
      by the level of punishment; (iii) the elements of the offense; (iv) the
      level of culpability involved; and (v) the degree to which the
      commission of the offense indicates a likelihood of recurring
      criminal conduct.
Id.; see United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991).
      Hernandez attempts to compare the punishments available for his prior
Indiana offense to the punishment available under Indiana law for other Class
C violations that theoretically could be characterized as juvenile-status


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                                  No. 16-41274

offenses.   Undercutting his attempted comparison, however, is Indiana’s
distinguishing between Class C infractions and Class C misdemeanors.
Compare, e.g., Ind. Code § 35-46-1-10.5(a) (possession of tobacco by a person
under 18, a “Class C infraction”), with Ind. Code § 7.1-5-7-7(a) (possession or
consumption of alcohol by a minor, a “Class C misdemeanor”).              Class C
misdemeanors―of which Hernandez was convicted―are punishable by both a
fine and up to 60 days’ imprisonment, while Class C infractions are only
punishable by a fine. See Ind. Code § 35-50-3-4 (Class C misdemeanors); Ind.
Code § 34-28-5-4(c) (infractions).     This distinction suggests Hernandez’
conviction was more serious than the other juvenile offenses he cites.
      Moreover, the misdemeanor punishment given Hernandez, 60 days’
imprisonment, obviously denotes a higher level of severity than a monetary
fine and “serves as a reasonable proxy for the perceived severity of the crime”.
United States v. Reyes-Maya, 305 F.3d 362, 367 (5th Cir. 2002) (citation
omitted). Given the above, at least two factors of the above-listed five relevant
factors weigh against Hernandez. Even assuming, arguendo, the remaining
three factors weigh in his favor, the outcome is not clear, as no single factor is
dispositive. United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).
      Our court has not previously addressed whether the Indiana statute at
issue qualifies as a juvenile-status offense, and we ordinarily do not find plain
error in the absence of controlling precedent. United States v. Evans, 587 F.3d
667, 671 (5th Cir. 2009). Further, an error is not plain where the defendant’s
theory requires the extension of precedent. United States v. Narez-Garcia, 819
F.3d 146, 152 (5th Cir.), cert. denied, 137 S. Ct. 175 (2016). In short, Hernandez
has not established the requisite clear or obvious error.
      AFFIRMED.




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