     Case: 09-40877 Document: 00511329794 Page: 1 Date Filed: 12/22/2010




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

                                                 FILED
                                                                         December 22, 2010

                                       No. 09-40877                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

CESAR RAMIREZ-MATA

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-267-1


Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Cesar Ramirez-Mata pleaded guilty to one count of conspiracy to
possess with intent to distribute less than 50 kilograms of marijuana and one
count of possession with intent to distribute less than 50 kilograms of
marijuana, in violation of 21 U.S.C. § 841. He was sentenced to two 46-month
terms of imprisonment, to run concurrently, to be followed by two three-year
terms of supervised release, also to run concurrently. He now appeals his
sentence, arguing that the district court erred in its calculation of the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40877 Document: 00511329794 Page: 2 Date Filed: 12/22/2010



                                  No. 09-40877

advisory sentencing range by treating him as a career offender under
U.S.S.G. § 4B1.1. Under that guideline, “[a] defendant is a career offender if,”
inter alia, he “has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” Id. § 4B1.1(a). Ramirez-Mata
argues that the district court erred when it treated his prior offense under
Tex. Penal Code § 22.011(a)(2) as a crime of violence, because that statute
“prohibit[s] consensual sexual contact with, or penetration of, a person under
17 years old.” United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004).
Without that prior offense, he would not have qualified as a career offender.
      Because Ramirez-Mata’s counsel failed to raise this issue in the district
court, it is reviewed for plain error. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009) (citing Fed. R. Crim. P. 52(b)).
      Rule 52(b) review — so-called “plain-error review” — involves
      four steps, or prongs. First, there must be an error or defect —
      some sort of “deviation from a legal rule” — that has not been
      intentionally relinquished or abandoned, i.e., affirmatively
      waived, by the appellant. [United States v. Olano, 507 U.S. 725,
      732-33 (1993).] Second, the legal error must be clear or obvious,
      rather than subject to reasonable dispute. [See id. at 734.] Third,
      the error must have affected the appellant’s substantial
      rights . . . . 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 affects the fairness, integrity or public reputation of
      judicial proceedings.” [Id. at 736 (quoting United States v.
      Atkinson, 297 U.S. 157, 160 (1936)).]
Puckett, 129 S. Ct. at 1429. We will assume for the sake of argument that the
district court made an error that was clear or obvious, because we conclude
that Ramirez-Mata does not satisfy the third prong.
      At the third prong of plain error review, when a sentencing error is at
issue, a defendant must “show that the error affected his substantial rights
by ‘undermin[ing] confidence in the outcome.’” United States v. Blocker, 612


                                        2
    Case: 09-40877 Document: 00511329794 Page: 3 Date Filed: 12/22/2010



                                  No. 09-40877

F.3d 413, 416 (5th Cir.) (per curiam) (alteration in original) (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (in turn quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984))), cert. denied, 2010 WL
4156179 (2010). “[T]his requires demonstrating a ‘reasonable probability
that, but for the district court’s misapplication of the Guidelines, [the
defendant] would have received a lesser sentence.’” Id. (quoting United States
v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)). Ramirez-Mata does not have
to show by a preponderance of the evidence that he would have received a
lower sentence if the district court had not misapplied the sentencing
guidelines. “The reasonable-probability standard is not the same as, and
should not be confused with, a requirement that a defendant prove by a
preponderance of the evidence that but for error things would have been
different.” Dominguez Benitez, 542 U.S. at 83 n.9 (citing Kyles v. Whitley, 514
U.S. 419, 434 (1995)).
      Because the district court treated Ramirez-Mata’s prior conviction as a
crime of violence, it classified him as a career offender under U.S.S.G.
§ 4B1.1. This had no effect on his offense level, which was calculated at 15
based on the quantity of marijuana involved and a reduction for acceptance of
responsibility; however, the career offender designation did set his criminal
history category at VI when it would otherwise have been V. The error thus
resulted in a sentencing guidelines range of 41-51 months when the range
should have been 37-46 months. The sentence actually imposed by the
district court was 46 months — the exact middle of the erroneous range, but
the very top of the correct range.
      In previous cases involving sentences “fall[ing] within both the correct
and incorrect guideline ranges,” we have addressed the third prong of plain
error review in a “highly fact sensitive” way. United States v. Campo-
Ramirez, 379 F. App’x 405, 409 (5th Cir. 2010) (unpublished). Compare

                                        3
    Case: 09-40877 Document: 00511329794 Page: 4 Date Filed: 12/22/2010



                                 No. 09-40877

United States v. Jones, 596 F.3d 273, 277-79 (5th Cir. 2009) (declining to
vacate a sentence), with United States v. Price, 516 F.3d 285, 289 (5th Cir.
2008) (vacating and remanding). In this case, at the sentencing hearing, the
district judge commented that he found 46 months to be a “reasonable”
sentence; however, he also twice noted that after carefully considering both
sides’ arguments, he was imposing a sentence at the midpoint of the incorrect
range on which he relied. Defense counsel’s strongest argument was that the
career offender designation overstated the seriousness of Ramirez-Mata’s
criminal history because it was predicated on the prior conviction under
§ 22.011(a)(2), which involved only consensual sex with a teenage girl who
thereafter, as an adult, continued to be in a long-term relationship with
Ramirez-Mata. If the district court had used the correct sentencing range,
defense counsel would have been deprived of his strongest argument because
the career offender designation would no longer have been at issue. Thus, it
is likely that the district court would still have found 46 months to be a
reasonable sentence. Ramirez-Mata has not shown a reasonable probability
that he would have received a lower sentence.
      We therefore AFFIRM the judgment of the district court.




                                        4
