     Case: 14-50157       Document: 00512886993         Page: 1     Date Filed: 12/31/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 14-50157                                   FILED
                                   Summary Calendar                         December 31, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE PATRICIO IBARRA-LARA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-614-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Patricio Ibarra-Lara appeals his 30-month above-advisory
Sentencing Guidelines sentence, imposed following his guilty-plea conviction
for illegal reentry, in violation of 8 U.S.C. § 1326. Ibarra asserts the district
court committed error when it assigned two criminal-history points because
the illegal reentry offense was committed while Ibarra was under a criminal
justice sentence of probation.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 14-50157     Document: 00512886993      Page: 2    Date Filed: 12/31/2014


                                  No. 14-50157

      Because Ibarra failed to raise this objection in district court, our review
is only for plain error. E.g., United States v. Peltier, 505 F.3d 389, 392 (5th Cir.
2007). Under that standard, Ibarra must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id.
      As the Government concedes, the two points were assessed in error, and
the error was clear or obvious. E.g., United States v. Blocker, 612 F.3d 413,
416 (5th Cir. 2010). Nevertheless, the error does not warrant reversal.
      Regarding whether the error affected Ibarra’s substantial rights,
although he was sentenced above an incorrectly calculated advisory Guidelines
range, the court explained the above-Guidelines sentence reflected the
seriousness of the offense. It emphasized Ibarra had returned to the United
States despite previously serving 24-months’ imprisonment for illegal reentry
and concluded that nothing short of a 30-month sentence would prevent Ibarra
from reoffending. (In that regard, Ibarra concedes it is unlikely the district
court would have imposed a sentence of less than 24 months.) “[W]e are
skeptical that [Ibarra] has met his burden of showing a reasonable probability
that, but for the district court’s consideration of the incorrect advisory range,
his sentence would have been lower”. United States v. Davis, 602 F.3d 643,
650 (5th Cir. 2010). In the alternative, based on the facts of this case, we
decline to exercise our discretion to remand. E.g., id. at 650-51.
      AFFIRMED.




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