     Case: 16-50948       Document: 00514384253      Page: 1   Date Filed: 03/13/2018




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

                                      No. 16-50948
                                                                           Fifth Circuit

                                                                         FILED
                                                                   March 13, 2018

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
                Plaintiff – Appellee,

v.

KEVIN CORY CARLILE,

                Defendant – Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas



Before BARKSDALE, DENNIS, * and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:

      Kevin Cory Carlile appeals his sentence following a felon in possession
of a firearm conviction. He argues that the district court committed reversible
error in calculating both his criminal history score under section 4A1.1 of the
United States Sentencing Guidelines and his base offense level under section
2K2.1(a)(4)(A) of the Sentencing Guidelines. Because the district court did not
commit reversible error, we AFFIRM.




      *   Concurring in the judgment only.
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                                  No. 16-50948
                                        I.
       Carlile pleaded guilty to possessing a firearm after a felony conviction.
When calculating Carlile’s criminal history score under section 4A1.1 of the
Sentencing Guidelines, the presentence investigation report assigned two
criminal history points for a driving while intoxicated (DWI) conviction, for
which Carlile now claims he served no prison time. The PSR reported that
Carlile’s total criminal history score was 10, and his criminal history category
was     V.     When     calculating   Carlile’s   base      offense   level   under
section 2K2.1(a)(4)(A), and over Carlile’s objection, the PSR included, as a prior
felony conviction, a deferred adjudication conviction for aggravated assault
causing serious bodily injury. The PSR reported that Carlile’s total offense
level was 17. Based upon Carlile’s total offense level and criminal history
category, the advisory guideline sentence was 46 to 57 months of incarceration.
       The district court sentenced Carlile to 46-months imprisonment, to run
consecutively to any sentence imposed upon revocation of his probation for his
conviction for aggravated assault causing bodily injury, followed by three years
of supervised release. Carlile timely appealed.
                                       II.
       On appeal, Carlile argues that the district court committed error: (1) by
assigning two criminal history points for his DWI conviction when calculating
his criminal history score; and (2) by treating his deferred adjudication for
aggravated assault causing serious bodily injury as a prior felony conviction
when calculating his base offense level.
       The parties agree on the two standards of review that apply. Because
Carlile failed to object in the district court to the assessment of two criminal
history points for his DWI conviction, plain-error review applies to this first




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                                 No. 16-50948
claim. See United States v. Martinez-Rodriguez, 821 F.3d 659, 662 (5th Cir.
2016). To prevail, Carlile must show:
      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. Second,
      the legal error must be clear or obvious, rather than subject to
      reasonable dispute. Third, the error must have affected the
      appellant’s substantial rights, which in the ordinary case means
      he must demonstrate that it “affected the outcome of the district
      court proceedings.” 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.”

United States v. Prieto, 801 F.3d 547, 549–50 (5th Cir. 2015) (quoting Puckett
v. United States, 556 U.S. 129, 135 (2009)).
      However, Carlile did object to the district court’s calculation of his base
offense level under section 2K2.1(a)(4)(A). “Where a defendant preserves error
by objecting at sentencing, we review the sentencing court’s factual findings
for clear error and its interpretation or application of the Sentencing
Guidelines de novo.” Martinez-Rodriguez, 821 F.3d at 662 (quoting United
States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015)).
                                        III.
      The first issue is whether the district court committed reversible plain
error in calculating Carlile’s criminal history score. Under the Sentencing
Guidelines, a defendant’s criminal history score is based on sentences imposed
for prior offenses.   Under section 4A1.1(a), three points are added to a
defendant’s criminal history “for each prior sentence of imprisonment
exceeding one year and one month,” and under section 4A1.1(b), two points are
added “for each prior sentence of imprisonment of at least sixty days not
counted in (a).” U.S.S.G. § 4A1.1(a)–(b). Section 4A1.1(c) provides that only

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                                       No. 16-50948
one point is assessed “for each prior sentence not counted in (a) or (b),” up to a
total of four points.       Id. § 4A1.1(c).       The next section of the Sentencing
Guidelines defines “sentence of imprisonment.” Id. § 4A1.2(b).                            The
commentary explains that “[t]o qualify as a sentence of imprisonment, the
defendant must have actually served a period of imprisonment on such
sentence. . . .” Id. § 4A1.2 cmt. n.2 (emphasis added).
       Carlile argues that he never “actually served” a term of imprisonment
for his DWI offense, and so he should have received only one—not two—
criminal history point for this offense. The PSR reported that Carlile was
sentenced to 364 days of confinement for the DWI offense, but it noted that the
investigative and court records for the offense were not available.                       The
supplemented record on appeal shows that Carlile was sentenced to 365 days
in prison “with credit given for 365 days already served.” 1 According to Carlile,
the “365 days already served” in the state’s order of conviction refers to the
time Carlile spent in prison for a different sentence: a 21-month criminal
mischief sentence. Therefore, he argues that he never “actually served” a term
of imprisonment for the DWI offense. We agree.
       The government argues that the days credited against Carlile’s sentence
for the DWI offense constitute time “actually served” for the DWI offense. The
government does not contend that Carlile served time specifically for his DWI
offense. According to the government, we should not “look beyond a judgment
when . . . it explicitly states the sentence imposed is being satisfied by time
served.” For this proposition, the government cites to United States v. Brown,
54 F.3d 234 (5th Cir. 1995), United States v. Realzola-Ramirez, 556 F. App’x


       1  As Carlile acknowledges, the district court did not have Carlile’s state court
conviction records because the probation officer could not obtain them. Because the relevant
issue is “whether there is plain error at the time of appellate consideration,” we consider the
record as supplemented on appeal. United States v. Wikkerink, 841 F.3d 327, 332 (5th Cir.
2016) (quoting United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006)).
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374 (5th Cir. 2014), and United States v. Fernandez, 743 F.3d 453 (5th Cir.
2014). These cases involve credit for time served: (1) in pre-trial detention, see
Fernandez, 743 F.3d at 457, and (2) in a partial prison sentence, see Brown, 54
F.3d at 240; Realzola-Ramirez, 556 F. App’x at 377. As the government
acknowledges, however, these cases do not address the issue of time served on
a different offense.
      Here, “the question is whether any time was actually served” on the
sentence for Carlile’s DWI offense. Brown, 54 F.3d at 240. The state court
ordered Carlile’s DWI sentence satisfied based on the time that he spent in
prison for a criminal-mischief offense. Because the state court elected to give
him credit for time served from this other sentence, Carlile did not spend any
time in custody for his DWI offense. See United States v. Buter, 229 F.3d 1077,
1079 (11th Cir. 2000) (“[The defendant] walked into and out of the state
courtroom a free man.”).
      We agree with the Sixth Circuit that “[c]old reality informs us that a
defendant who receives full credit for time served on an entirely separate
conviction does not in fact ‘actually serve’ any time for the offense in question.”
United States v. Hall, 531 F.3d 414, 419 (6th Cir. 2008). Because Carlile did
not actually serve any time for his DWI offense, the district court erred in
assigning Carlile two criminal history points based on this offense.
      However, Carlile has not established that the district court’s error was
clear or obvious. See Puckett v. United States, 556 U.S. 129, 135 (2009) (“[T]he
legal error must be clear or obvious, rather than subject to reasonable
dispute.”). We have explained that an error is only plain if it is “so clear or
obvious that ‘the trial judge and prosecutor were derelict in countenancing it,
even absent the defendants timely assistance in detecting it.’” United States
v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (quoting United States v. Hope, 545
F.3d 293, 296 (5th Cir. 2008)). As discussed, we have determined that the
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                                  No. 16-50948
district court did err in assigning Carlile two criminal history points for this
DWI offense, but we acknowledge that, absent direction from our court or a
timely objection from the defendant, the district court could have reasonably
interpreted section 4A1.1’s time served requirement to make no distinction
between the conviction at hand and a different conviction.
      Moreover, Carlile has not offered a case from our circuit addressing
whether a sentence of time served on a separate offense qualifies as a “sentence
of imprisonment” for assigning criminal history points under section 4A1.1.
See United States v. Miller, 406 F.3d 323, 330 (5th Cir. 2005) (“Absent any
precedent directly supporting [the defendant’s] contention, it cannot be said
that the alleged error was ‘plain’ for purposes of our review.”) Establishing
plain error requires a showing that the error was clear under “the law in place
at the time of trial.” Trejo, 610 F.3d at 319. Here, Carlile has not shown that
the district court’s error was obvious at that time. “We ordinarily do not find
plain error when we ‘have not previously addressed’ an issue.” United States
v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (quoting United States v. Lomas,
304 F. App’x 300, 301 (5th Cir. 2008)). Therefore, Carlile’s claim necessarily
fails under plain-error review.
      Even assuming arguendo that this claimed error was plain and affected
Carlile’s substantial rights, under the second and third prongs of plain-error
review, Carlile’s arguments also fail because he cannot prevail under the
fourth prong. “[W]e do not view the fourth prong of plain-error review as
automatic if the other three prongs are met.” United States v. Pena, 720 F.3d
561, 576 (5th Cir. 2013) (quoting United States v. Escalante–Reyes, 689 F.3d
415, 425 (5th Cir. 2012) (en banc)). “A court should correct a plain, forfeited
error affecting substantial rights only where ‘the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.’” United States
v. Guillen-Cruz, 853 F.3d 768, 775 (5th Cir. 2017) (quoting United States v.
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                                   No. 16-50948
Olano, 507 U.S. 725, 736 (1993)). The Supreme Court has instructed us that
“the fourth prong is meant to be applied on a case-specific and fact-intensive
basis. . . . [And] a ‘per se approach to plain-error review is flawed.’” United
States v. John, 597 F.3d 263, 286 (5th Cir. 2010) (quoting Puckett, 556 U.S. at
142). Using this case-by-case, fact-intensive approach, we have declined to
correct errors where a sentencing disparity exists but other facts, such as a
significant criminal history, are present. See, e.g., United States v. Brown, 826
F.3d 835, 841 (5th Cir. 2016) (declining to exercise our discretion based on the
defendant’s extensive criminal history and the district court’s statements at
sentencing).
      Here, we decline to exercise our fourth-prong discretion.            Carlile’s
criminal history—including two convictions for driving while intoxicated,
aggravated assault, and criminal mischief—weighs against correcting this
error. See United States v. Mendoza-Velasquez, 847 F.3d 209, 213 (5th Cir.
2017) (“[The defendant’s] lengthy criminal history counsels against the Court
rectifying any error in this case.”). Moreover, if Carlile’s criminal history score
were corrected, it would reduce his Guidelines range from 46 to 57 months to
37 to 46 months. He was sentenced to 46 months, and so at most, there is a
nine month disparity between the relevant Guidelines at issue here. Indeed,
even applying the correct Guidelines range, the district court could still impose
the same sentence: 46 months. In light of the totality of this record, we decline
to exercise our fourth prong discretion. See Brown, 826 F.3d at 841 (“We have
consistently held that it is not necessary to correct an error if there is sufficient
evidence in the record showing that the incorrect sentence was nevertheless
fair.”); see also United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (“Not




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                                  No. 16-50948
every error that increases a sentence need be corrected by a call upon plain
error doctrine.”). As such, Carlile’s challenge also fails for this reason.
                                       IV.
      The next issue, which, as noted, Carlile preserved in the district court, is
whether the district court erred in calculating Carlile’s offense level by treating
his deferred adjudication conviction for aggravated assault causing serious
bodily injury as a felony conviction under section 2K2.1(a)(4)(A). As Carlile
acknowledges, his argument here is foreclosed by our prior decision in United
States v. Stauder, 73 F.3d 56, 56 (5th Cir. 1996) (determining that “for
sentencing for a felon in possession of a firearm conviction, a Texas criminal
deferred adjudication can be used for calculating the base offense level under
the Sentencing Guidelines”).
      “It is a firm rule of this circuit that in the absence of an intervening
contrary or superseding decision by this court sitting en banc or by the United
States Supreme Court, a panel cannot overrule a panel’s decision.” Burge v.
Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). We are bound by our
precedent, and Carlile’s second claim fails, as well.
                                        V.
      Accordingly, because Carlile’s first argument fails under prong two, and
assuming it satisfies that prong as well as the third, fails under prong four of
plain-error review, and because Carlile’s second argument is foreclosed by our
precedent, we AFFIRM Carlile’s sentence.




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