     Case: 15-40849      Document: 00513586972         Page: 1    Date Filed: 07/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 15-40849                                 FILED
                                   c/w No. 15-40859                           July 11, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

PEDRO JUAN-SOLANO,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 1:15-CR-2-1
                             USDC No. 1:14-CR-885-1


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant Pedro Juan-Solano pled guilty to one count of illegal reentry,
in violation of 8 U.S.C. § 1326. The district court sentenced him to 54 months
imprisonment followed by three years of supervised release. Juan-Solano also
received an additional 8-month sentence for violating the conditions of his term
of supervised release. For the first time on appeal, Juan-Solano argues that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40849        Document: 00513586972           Page: 2     Date Filed: 07/11/2016



                             No. 15-40849 c/w No. 15-40859
the district court erroneously assessed an extra criminal history point for a
2008 conviction. Because Juan-Solano did not object below, he must satisfy
the four prongs of plain error review:
       First, there must be an error or defect—some sort of “[d]eviation
       from a legal rule”—that has not been intentionally relinquished or
       abandoned, i.e., affirmatively waived, by the appellant. Second,
       the legal error must be clear or obvious, rather than subject to
       reasonable dispute. Third, the error must have affected the
       appellant’s substantial rights, which in the ordinary case means
       he must demonstrate that it “affected the outcome of the district
       court proceedings.” Fourth and finally, if the above three prongs
       are satisfied, the court of appeals has the discretion to remedy the
       error—discretion which ought to be exercised only if the error
       “seriously affect[s] the fairness, integrity or public reputation of
       judicial proceedings.” 1
       Juan-Solano cannot prevail under this standard of review.                         As the
Government notes, the record is equivocal regarding the number of days in jail
that Juan-Solano served for the 2008 conviction. 2 That is, any error is not
“clear or obvious.” And “in asking us to exercise our discretion, [Juan-Solano]
points to nothing beyond the district court’s error and the increase in h[is]
sentence that the error may have caused.” 3 We remind that this Court has
warned that such a “per se fourth-prong argument” is insufficient as a matter
of law. 4 But regardless, we are not persuaded that the alleged error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
       We AFFIRM the district court.



       1 Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (citations
omitted) (quoting United States v. Olano, 507 U.S. 725, 732-34, 736 (1993)).
       2 See United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008) (“We analyze

the district court’s error and the plainness of any error at the time of appellate consideration.”
(emphasis added)).
       3 United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015); see also United States

v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) (“[W]e do not view the fourth
prong as automatic if the other three prongs are met.”).
       4 Rivera, 784 F.3d at 1018.

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