     Case: 16-40884         Document: 00513947422          Page: 1     Date Filed: 04/11/2017




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

                                         No. 16-40884                                   FILED
                                                                                    April 11, 2017
                                                                                   Lyle W. Cayce
Consolidated With 16-40887                                                              Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff–Appellee,

v.

AURELIANO VILLARREAL-GARCIA,

                                                     Defendant–Appellant.


                     Appeals from the United States District Court
                          for the Southern District of Texas
                                USDC No. 5:16-CR-81-1
                               USDC No. 5:15-CR-1406-1


Before JONES and OWEN, Circuit Judges, and ENGELHARDT, ∗ District
Judge.

PER CURIAM: **
       For the first time on appeal, Aureliano Villarreal-Garcia contends that
the district court erred by imposing consecutive sentences for his illegal
reentry offense and his violation of supervised release because the court

       ∗
           District Judge of the Eastern District of Louisiana, sitting by designation.

       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40884     Document: 00513947422     Page: 2   Date Filed: 04/11/2017


                          No. 16-40884 c/w 16-40887

erroneously believed it lacked authority to run the sentences concurrently. We
review the forfeited objection for plain error. See United States v. Whitelaw,
580 F.3d 256, 259 (5th Cir. 2009). Villarreal-Garcia must show an error that
is clear or obvious that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error, but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at 135 (alteration in
original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
      The probation officer advised the district court that the sentences must
run consecutively. The court indicated its agreement at sentencing, citing a
decision of this court requiring consecutive terms that has been abrogated. The
district court now has “discretion to make its [sentences] run concurrently (or
partially concurrently) with the previously imposed . . . sentence for supervised
release revocation (although the Commission recommends that the sentence
imposed be consecutive to that for the revocation).” United States v. Huff, 370
F.3d 454, 465 (5th Cir. 2004); see also 18 U.S.C. § 3584(a), (b). The district
court’s statement that it was required to run the sentences consecutively was
clear or obvious error.
      We thus consider whether the error affected Villarreal-Garcia’s
substantial rights, guided by the Supreme Court’s recent decision in Molina-
Martinez v. United States, 136 S. Ct. 1338 (2016). The district court effectively
applied a cumulative guidelines range of 36 to 48 months (24 to 30 months for
the illegal reentry and 12 to 18 months for the supervised release violation). It
imposed consecutive terms at the bottom of that range, totaling 36 months.
Taking into account an error in the calculation of Villarreal-Garcia’s criminal
history score discussed below, the correct range for his illegal reentry offense
was 21 to 27 months.        Therefore, the applicable cumulative range was



                                        2
    Case: 16-40884     Document: 00513947422     Page: 3     Date Filed: 04/11/2017


                          No. 16-40884 c/w 16-40887

21 months (assuming concurrent sentences at the bottom end) to 45 months
(assuming consecutive sentences at the high end). If the court had opted to
impose concurrent sentences at the bottom end of the correct range, Villarreal-
Garcia’s sentence would have been 15 months lower. He has shown that his
substantial rights were affected, see Molina-Martinez, 136 S. Ct. at 1346-48.
      Villarreal-Garcia also objects to the assignment of three criminal history
points to a 2007 illegal reentry offense. Plain error review applies to the
forfeited objection. See United States v. Avalos-Martinez, 700 F.3d 148, 153
(5th Cir. 2012) (per curiam). As the Government concedes, Villarreal-Garcia
has shown an error that was clear or obvious because the 12-month and one-
day sentence for the 2007 offense should have received only two criminal
history points.      See U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.)
§ 4A1.1(a), (b) (U.S. SENTENCING COMM’N 2015).             The error affected his
substantial rights because it increased the guidelines range for the instant
illegal reentry from 21 to 27 months to 24 to 30 months. See U.S.S.G. ch. 5, pt.
A (Sentencing Table) (Zone D); Molina-Martinez, 136 S. Ct. at 1346-48.
      Despite the Villarreal-Garcia’s showing that the sentencing errors
affected his substantial rights, this “court should not exercise that discretion
unless the error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” United States v. Olano, 507 U.S. 725, 732 (1993)
(alteration in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
The Sentencing Commission recommends “that any sentence of imprisonment
for a criminal offense that is imposed after revocation of probation or
supervised release be run consecutively to any term of imprisonment imposed
upon revocation.” U.S.S.G. § 7B1.3 cmt. n.4.
      This defendant has been previously deported at least four times, with
felony re-entry convictions in 2007, 2014, and now again.           Following his



                                        3
    Case: 16-40884     Document: 00513947422          Page: 4   Date Filed: 04/11/2017


                            No. 16-40884 c/w 16-40887

deportation in 2007, he returned less than a month later. In this case, he
returned to the United States fewer than seven months after his last
deportation. This is his third felony conviction for re-entry. Prior terms of
imprisonment and supervised release do not appear to have had a deterrent
effect on this defendant.
      The defendant also has a history of drug possession. In addition to a
prior misdemeanor conviction for possession of marijuana, in 1993 the
defendant pled guilty to felony possession of cocaine; he received five years
deferred adjudication. In 2000, he again pled guilty to possession of cocaine,
and received a five-year sentence of imprisonment. That offense also involved
evasion of police attempting to execute a warrant and subsequent discovery of
cocaine, cash, and a firearm on the premises. In 2014, it was his arrest for
possession of marijuana that brought him to the attention of Immigration
authorities.
      In this case, the correct Guidelines range would have been 21 months to
45 months. Given this defendant’s recidivist history of re-entry and drug
possession,    and   with   due   regard       for   the   Sentencing   Commission’s
recommendation that sentences be served consecutively, we do not believe a
total sentence of 36 months affects the fairness, integrity, or public reputation
of judicial proceedings. We therefore decline to exercise our discretion to
correct this plain error.
      We AFFIRM the district court’s judgment.




                                           4
