     Case: 14-51135      Document: 00513132519         Page: 1    Date Filed: 07/28/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-51135                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 28, 2015
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

AGUSTIN BUSTOS-CASTANEDA,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CR-1022


Before DAVIS, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant,         Augustin      Bustos-Castaneda           (“Appellant”),
appeals his 57 month sentence for illegal reentry. Although the district court
erred in calculating Appellant’s sentence, the court’s error does not affect
Appellant’s substantial rights. Thus, we affirm the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51135
                                    I. BACKGROUND
Appellant pleaded guilty to illegal reentry. The PSR calculated a guidelines
range of 57 to 71 months of imprisonment based on an offense level of 21 and
Criminal History Category of IV. Included in the calculation of Appellant’s
Criminal History Category was three points for an eight-month sentence
imposed in 2002 for a conviction for possession of a controlled substance.
Appellant did not object to the calculation of the guidelines range.
      At the beginning of the sentencing hearing, Appellant sought a variance
from the district court. In denying Appellant’s request for a variance, the
district court stated, “There will be no variance.                  The guideline range is
reasonable.”        The district court sentenced Appellant to 57 months of
imprisonment and three years of supervised release.
      On appeal, both Appellant and the Government agree that the district
court clearly erred by assessing criminal history points for a sentence that was
imposed more than ten years before the instant 2014 offense. We agree that
the district court clearly erred in considering the 2002 conviction in calculating
Appellant’s Criminal History Category. 1               The issue before this Court is
whether the district court’s error affected Appellant’s substantial rights.
                                        II. DISCUSSION
      Appellant did not object to the calculation of his criminal history in the
district court; therefore, we review the district court’s inclusion of the 2002
sentence for plain error. 2 To show plain error, Appellant must show that the
error was clear or obvious and that it affects his substantial rights. 3 If he
makes such a showing, this Court has the discretion to correct the error but


      1   See U.S.S.G. § 4A1.2(e)(2).
      2   See United States v. Pratt, 728 F.3d 463, 481 (5th Cir. 2013).
      3   See Puckett v. United States, 556 U.S. 129, 135 (2009).

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                                          No. 14-51135
only if it “‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” 4
       To show that the error affects his substantial rights, Appellant must
show “there is a reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.” 5
Without the error, Appellant’s criminal history score is six and his Criminal
History Category is III. 6 Combined with his offense level of 21, his correct
guidelines range of imprisonment is 46 to 57 months instead of 57 to 71
months. The district court imposed a prison sentence of 57 months, which is
at the bottom of the Guidelines range applied by the court and at the top of the
properly calculated range. When, as in this case, “the correct and incorrect
ranges overlap and the defendant is sentenced within the overlap, [this court
does] not assume, in the absence of additional evidence, that the sentence
affects a defendant’s substantial rights.” 7 Thus, because Appellant’s sentence
fell within both the correct and incorrect Guidelines range, Appellant
acknowledges that our controlling caselaw “obliges him to point to ‘additional
evidence’ in the record, other than the difference in ranges, to show an effect
on his substantial rights.” 8 “Record evidence that the Guidelines range was a
‘primary factor’ in sentencing may be sufficient ‘additional evidence.’” 9
       We conclude that Appellant has not pointed to sufficient additional
evidence in the record to establish that the district court would have likely


       4   Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
       5   Id. (internal quotation marks and citation omitted).
       6   See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
       7   Pratt, 728 F.3d at 481-82 (internal quotation marks and citations omitted).
       8  United States v. Molina-Martinez, 588 F. App’x 333, 335 (5th Cir. 2014), petition for
cert. filed (Mar. 16, 2015)(No. 14-8913).
       9   See id. (citing Pratt, 728 F.3d at 481-82).
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                                       No. 14-51135
sentenced Appellant to a lower term of imprisonment had it applied the correct
Guidelines range. The district court made no explicit statement suggesting
that the incorrect Guidelines range was a primary factor in sentencing. 10 Nor
did the court indicate that it was sentencing Appellant to a particular section
of the Guidelines range. 11 Instead, the court only stated that the incorrect
range was “reasonable.” This statement is insufficient for us to say that there
is a reasonable probability that Appellant would have received a lesser
sentence. 12 Accordingly, Appellant has not pointed to sufficient additional
evidence that his sentence under the correct Guidelines range would be
reduced. Because Appellant has not shown how his substantial rights were
effected, he has not established plain error warranting reversal by this Court.
The judgment of the district court is AFFIRMED.




       10 See Pratt, 728 F.3d at 482 (“The district court also stated on the record that it was
choosing a sentence within the middle of the Guidelines range as the appropriate sentence,
indicating that the Guidelines range calculated by the district court was a primary factor in
the selection of the . . . sentence.”).
       11   See id.
       12 Molina-Martinez, 558 F. App’x at 335 (“The mere fact that the court sentenced
[Appellant] to a low-end sentence is insufficient on its own to show that [Appellant] would
have received a similar low-end sentence had the district court used the correct Guidelines
range.”).

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