     Case: 10-20839     Document: 00511638339         Page: 1     Date Filed: 10/19/2011




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

                                                                            FILED
                                                                         October 19, 2011
                                     No. 10-20839
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RICARDO CASTILLO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-318-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Ricardo Castillo appeals his 151-month sentence following his conviction
for conspiracy to possess with intent to distribute five kilograms or more of
cocaine. He argues only that the district court committed procedural error by
relying on a clearly erroneous fact when imposing his sentence. See Gall v.
United States, 552 U.S. 38, 51 (2007). Because he raises this issue for the first
time on appeal, we review the issue for plain error. See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20839    Document: 00511638339       Page: 2   Date Filed: 10/19/2011

                                   No. 10-20839

      Castillo is correct that when the district court initially gave its reasons for
his sentence, the court stated that he was in this country illegally. However,
after the probation officer and the parties informed the court that Castillo was
here legally, the district court did not alter its sentence, and in its written
statement of reasons, the district court omitted any reference to Castillo’s
immigration status. Because the district court corrected its own error in the
written statement of reasons, Castillo has not shown that the district court
committed plain error by relying on a clearly erroneous fact. See Gall, 552 U.S.
at 51. Additionally, “[q]uestions of fact capable of resolution by the district court
upon proper objection at sentencing can never constitute plain error.” United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Castillo’s challenge to the
district court’s statement regarding his illegal status could easily have been
resolved by the district court if he had objected to that finding. Because Castillo
did not object, for this additional reason, he cannot show plain error in
connection with the district court’s statement that he was in this country
illegally. See id.
      Moreover, Castillo has failed to establish with a reasonable probability
that, but for any error, he would have received a lower sentence, see United
States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010), in light of the fact that the
district court did not alter its sentence after it was informed that Castillo was
in this country legally and that it omitted his immigration status from its
written statement of reasons. For these reasons, Castillo has failed to overcome
plain-error review. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      AFFIRMED.




                                         2
