     Case: 17-40080      Document: 00514337766         Page: 1    Date Filed: 02/06/2018




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

                                      No. 17-40080
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 6, 2018

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

MAURICIO LUNA-BARRAGAN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CR-435


Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Mauricio Luna-Barragan pleaded guilty to illegal reentry and was
sentenced to 57 months in prison. That sentence was at the high end of his
Guidelines range, which was based on a criminal history category of V because
ten criminal history points were assigned to Luna-Barragan. Two of those
points came from a Georgia sentence for “theft by taking” in which Luna-
Barragan spent 75 days in jail and ultimately received a probation sentence of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40080
5 years. Luna-Barragan did not object to the scoring of that Georgia conviction
in the trial court, but now argues it should have received only one point. That
reduction would put him in category IV, which would reduce his Guidelines
range to 37-46 months.
      Because Luna-Barragan did not raise this objection in the district court,
he must show a plain error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he can do so, then we have the
discretion to remedy the error if it “seriously affect[s] the fairness, integrity or
public reputation” of the proceeding.        Id. (alteration in original) (citation
omitted).
      Luna-Barragan is correct that only one point should have been assigned
to the Georgia probation sentence. The Guidelines assign three points for any
sentence of imprisonment exceeding one year and one month; two points for a
sentence of imprisonment less than a year and a month but of at least sixty
days; and one point for other prior sentences. U.S.S.G. § 4A1.1. Because Luna-
Barragan had spent 75 days in custody on the Georgia conviction, it was
assigned two points. But the Georgia court imposed a sentence of 5 years
probation and credited the 75 days spent in jail against that probation
obligation (so Luna-Barragan would have 4 years, 9 ½ months of probation
remaining after his sentencing). The sentence itself thus did not impose time
in prison. It would be different if the court imposed a sentence of 75 days to be
followed by 5 years of probation. Because the sentence imposed was only for
probation, it should have been assigned only one point. See U.S.S.G. § 4A1.1
cmt. background (explaining that the sections assigning points for prior
sentences “distinguish confinement sentences longer than one year and one
month, shorter confinement sentences of at least sixty days, and all other
sentences, such as confinement sentences of less than sixty days, probation,
fines and residency in halfway house” (emphasis added)).
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                                       No. 17-40080
       This error, however, is not an obvious one. The Presentence Report
describes the sentence as “5 years probation with credit for time served (75
days).” A sentence of 75 days “time served,” standing alone, would result in
two points. U.S.S.G. § 4A1.1(b). We have no cases addressing this unusual
interplay of a sentence involving both jail time and probation. United States
v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (“We ordinarily do not find plain
error when we have not previously addressed an issue.” (citation omitted)).
Because Luna-Barragan served 75 days in addition to receiving a probation
sentence, it was not readily apparent that the scoring in the Presentence
Report was wrong. United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir.
2015).
       Even if Luna-Barragan could show obvious error, we would not correct
the mistake because he is unable to meet the final requirement for us to have
that authority.       He can satisfy the third requirement because the error
prejudiced him by increasing his Guidelines range. Molina-Martinez v. United
States, 136 S. Ct. 1338 (2016). But not all errors that impact a sentence are
ones that substantially affect the fairness, integrity, or reputation of the
proceeding. 1 United States v. Sarabia–Martinez, 779 F.3d 274, 278 (5th Cir.
2015). We do not see that unjust result here because the Georgia conviction
would have received two points if the judge had just sentenced Luna-Barragan
to time served. He ended up receiving a much more serious sentence as he also



       1 The Supreme Court has granted certiorari to review the proper application of this
prong from our decision in United States v. Rosales-Mireles, 850 F.3d 246 (5th Cir. 2017),
cert. granted, No. 16-9493, 2017 WL 2505758 (U.S. Sept. 28, 2017). In the meantime, we
apply the en banc majority opinion in United States v. Escalante-Reyes, 689 F.3d 415 (5th
Cir. 2012) (en banc), rather than the “shocks the conscience” language from the dissenting
opinion. United States v. Broussard, 669 F.3d 537, 554 (5th Cir. 2012) (explaining that, under
our rule of orderliness, the earlier of the two opinions controls); Wicker v. McCotter, 798 F.2d
155, 157-58 (5th Cir. 1986) (even when the Supreme Court has granted certiorari, we
continue to follow our own precedents unless and until the Court says otherwise).
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                                  No. 17-40080
had to serve years under court supervision. The nuanced distinction—between
the 75 days being credited against the probation term as opposed to being in
addition the probation obligation—that led to the error thus arguably is in
tension with the Guidelines’ common-sense goal of assigning more points to
prior sentences that are more severe. It is not the type of error that casts doubt
on the fairness of the process.
      Because Luna-Barragan does not satisfy the second and fourth
requirements for plain-error correction, the judgment is AFFIRMED.




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