     Case: 13-51200      Document: 00513094263         Page: 1    Date Filed: 06/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 13-51200                                  FILED
                                  Summary Calendar                            June 25, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ZAVALA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:13-CR-164-14


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Zavala was convicted by a jury of conspiring to possess with intent
to distribute methamphetamine. The district court determined that Zavala’s
sentencing range was 292 to 365 months of imprisonment, and it sentenced
him to 292 months of imprisonment, to be followed by a five-year term of
supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51200       Document: 00513094263    Page: 2   Date Filed: 06/25/2015


                                  No. 13-51200

      On appeal, Zavala argues that the district court erred in assessing two
criminal history points for a 325-day sentence that was imposed in August
2002 as punishment for his state court conviction of possession of a controlled
substance. As Zavala concedes, his failure to object in the district court results
in plain error review. See United States v. Jasso, 587 F.3d 706, 709 (5th Cir.
2009). To demonstrate plain error, Zavala must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      The Presentence Report, which the district court adopted without
objection,   discloses     that   Zavala’s    involvement     in    the      instant
methamphetamine conspiracy offense began on September 20, 2012. As more
than 10 years elapsed between the imposition of the 325-day state court
sentence and Zavala’s commencement of the current offense, the district court
erred by assessing two criminal history points. See U.S.S.G. § 4A1.1 comment.
(n.2); U.S.S.G. § 4A1.2(e)(2).     Because this conclusion is reached by a
“straightforward application of the guidelines,” the error was also clear or
obvious. United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010).
      Zavala asserts that his substantial rights were affected. He argues that
he should prevail on the issue under United States v. Arviso-Mata, 442 F.3d
382 (5th Cir. 2006), and that the same result would be obtained under decisions
rendered by the Seventh Circuit Court of Appeals. As the decision in Arviso-
Mata was not based on a determination that the appellant’s substantial rights
had been affected, see 442 F.3d at 385-86, we reject Zavala’s contention that
Arviso-Mata controls our decision here.




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                                 No. 13-51200

      “In the sentencing context, . . . an appellant can show an impact on
substantial rights—and therefore a basis for reversal on plain error review—
where the appellant can show a 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). The appellant has the
burden of establishing a reasonable probability of receiving a lower sentence.
Id. at 647-48. Where, as here, the sentence imposed falls within both the
correct and incorrect Guidelines, this court has “shown considerable reluctance
in finding a reasonable probability that the district court would have settled
on a lower sentence” and “do[es] not assume, in the absence of additional
evidence, that the sentence affects a defendant’s substantial rights.” Blocker,
612 F.3d at 416.
      Zavala points out that he would have had zero criminal history points
had the Guidelines been correctly applied, and he notes that the district court
stated that it would give consideration to his family in determining his
sentence. There is nothing in the record, however, that demonstrates the
requisite reasonable probability that Zavala would have received a lower
sentence absent the district court’s error. See Davis, 602 F.3d at 647-48. The
fact that Zavala was sentenced at the bottom of the incorrectly calculated
guidelines range does not alone establish that the error in calculating the
guidelines range affected his substantial rights. See United States v. Jones,
596 F.3d 273, 277-78 (5th Cir. 2010); Jasso, 587 F.3d at 714 n.11. Moreover,
in view of the substantial overlap between the sentencing range utilized by the
district court and the correct sentencing range, Zavala cannot establish that
his substantial rights were affected. See Jones, 587 F.3d at 278.
      AFFIRMED.




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