     Case: 17-40099      Document: 00514236994         Page: 1    Date Filed: 11/14/2017




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

                                    No. 17-40099
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        November 14, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                     Plaintiff - Appellee

v.

LUIS ALBERTO RUIZ-DOMINGUEZ,

                     Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-644-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
              Luis Alberto Ruiz-Dominguez pled guilty to being found in the
United States after deportation, having been previously convicted of a felony.
Applying the 2016 edition of the Sentencing Guidelines, the presentence report
(PSR) calculated a total offense level of 17 and a criminal history category of
VI, resulting in a guideline range of 51 to 63 months in prison. (PSR ¶ 76);
Ch. 5, Pt. A, Sentencing Table. The district court sentenced him to 63 months


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40099
in prison and a three-year term of supervised release. Ruiz-Dominguez filed a
timely notice of appeal.
                                DISCUSSION
      Ruiz-Dominguez argues that the district court committed plain error and
violated the Ex Post Facto Clause when it incorrectly sentenced him under the
2016 edition of the Sentencing Guidelines. Under the 2015 version of § 2L1.2,
which was effective at the time the offense was committed, his total offense
level would have been 13 at most. Ruiz-Dominguez asserts that this would
have resulted in a guidelines range of 33 to 41 months rather than a range of
51 to 63 months.
      The Government concedes that the district court committed a clear and
obvious ex post facto violation by sentencing Ruiz-Dominguez under the 2016
edition of the Sentencing Guidelines, which resulted in a higher guidelines
range than the 2015 edition of the Sentencing Guidelines would have provided.
The Government also concedes that a reasonable probability of harm to
substantial rights was shown because the 63-month sentence imposed
exceeded the high end of the applicable guidelines range by 22 months. The
Government, however, contends that the fourth prong of the plain error
standard was not satisfied.    The Government argues that this court has
declined to exercise its fourth-prong discretion when the record demonstrates
recidivistic behavior.     The Government contends that based on Ruiz-
Dominguez’s 15-year criminal history of 16 convictions and 10 unadjudicated
arrests, the circumstances of the case did not present the kind of exceptional
circumstances required to satisfy the fourth prong of plain error review.
      To establish plain error, Ruiz-Dominguez 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).       In the sentencing context,
demonstrating an impact on substantial rights generally requires showing “a
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                                 No. 17-40099
reasonable probability that, but for the district court’s error, the appellant
would have received a lower sentence.” United States v. Davis, 602 F.3d 643,
647 (5th Cir. 2010). If he makes such a showing, the court has the discretion
to correct the error, which the court should exercise only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
Puckett, 556 U.S. at 135.
      Because the Government concedes clear and obvious error that affected
Ruiz-Dominguez’s substantial rights, the only issue before this court is
whether the error affected the fairness, integrity, or public reputation of
judicial proceedings. Under the fourth prong of plain error review, this court
exercises its discretion to correct an error “in those circumstances in which 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). The determination whether to do so is case-specific,
Puckett, 556 U.S. at 142, with the focus on “the degree of the error and the
particular facts of the case,” United States v. Martinez-Rodriguez, 821 F.3d
659, 664 (5th Cir. 2016) (internal quotation marks and citation omitted. As
the en banc court emphasized in Escalante-Reyes, it “do[es] not view the fourth
prong as automatic.” 689 F.3d at 425.
      In determining whether to exercise its discretion, this court compares
the degree of the error and the particular facts of the case “to other cases that
have turned on the fourth prong.” Martinez-Rodriguez, 821 F.3d at 664. In
cases in which this court has vacated a sentence based on the extent of its
deviation from the correct guidelines range, the defendant has normally been
sentenced within a higher, incorrect guidelines range. See, e.g., id. at 664-67
(exercising discretion despite particular facts weighing against it because of
the 36-month disparity between a sentence at the bottom of the incorrect range
and a sentence at the bottom of the correct range).
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                                 No. 17-40099
      Here, Ruiz-Dominguez was sentenced within a higher, incorrect
guidelines range. However, Ruiz-Dominguez has a significant criminal history
reflecting recidivistic behavior. For example, his criminal history includes
convictions for evading or resisting arrest in 2005, 2006 and 2009, assault in
2005 and 2007, and illegal entry in 2010 and illegal reentry in 2012.
Recidivistic behavior has weighed against exercising the court’s discretion. See
United States v. Davis, 602 F.3d 643, 645-46, 650-51 (5th Cir. 2010) (noting,
inter alia, that the defendant had committed several violations of his
supervised release only five months into a five-year term and that he appeared
to be preparing to resume a pattern of criminal activity); United States v.
Flores, 601 F. App’x 242, 246-47 (5th Cir. 2015) (noting that the defendant had
admitted the criminal act underlying the erroneous sentencing enhancement
and that he had a prior conviction for a similar offense). The sheer number of
Ruiz-Dominquez’s past offenses and arrests demonstrates an ongoing and
serious lack of respect for law and law enforcement officers. As we recently
explained, “a large gap between the correct range and the improperly
calculated-yet-relied-upon range does not mandate correction where other
factors counsel hesitation.” United States v. Torres, 856 F.3d 1095, 1100 (5th
Cir. 2017). Recidivism is among those factors. Id. Ruiz-Dominguez’s record
of past criminal conduct persuades us against exercising our discretion to
correct the forfeited error.
                                                                  AFFIRMED.




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