     Case: 13-40324      Document: 00512874118         Page: 1    Date Filed: 12/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-40324                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 17, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

SAUL MOLINA-MARTINEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-848-1


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Saul Molina-Martinez pleaded guilty, without the benefit of a plea
agreement, to being illegally present in the United States following
deportation, having been convicted of an aggravated felony.                          8 U.S.C.
§§ 1326(a), (b). The district court sentenced Molina-Martinez to 77 months in
prison, at the bottom of the 77 to 96 month Sentencing Guidelines range set


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-40324
forth in the presentence report, and to a three-year term of supervised release.
For the first time on appeal, Molina-Martinez argues that the district court
erred in calculating his criminal history category, and that the correct
Guidelines range should have been 70 to 87 months. Because he did not object
on this ground in the district court, we review the claim for plain error. See
United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).              Molina-
Martinez must show an 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, we have the discretion to correct the error if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Under the Sentencing Guidelines, prior sentences are counted as a single
sentence if they were imposed on the same day, unless the “offenses . . . were
separated by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense).”           U.S.S.G. § 4A1.2(a)(2).
Molina-Martinez committed four aggravated burglaries in Tennessee in May
2009, and he committed a fifth aggravated burglary and a theft in May 2010.
His first arrest for any of these offenses occurred in June 2010. The probation
officer imposed a total of nine criminal history points for three of these offenses
pursuant to U.S.S.G. § 4A1.1(a) and two additional points for the uncounted
offenses under § 4A1.1(e), resulting in a total of 18 criminal history points and
a criminal history category of VI. However, because there was no intervening
arrest between the Tennessee burglaries, Molina-Martinez should have
received only a total of 12 criminal history points, which results in a criminal
history category of V. The correct calculation would have reduced Molina-
Martinez’s Guidelines range from 77–96 months to 70–87 months.                  The
government concedes this error. Molina-Martinez therefore has shown a plain


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                                     No. 13-40324
or obvious error in the criminal history calculation. See Puckett, 556 U.S. at
135.
        Molina-Martinez has not, however, established that the error affected
his substantial rights. Molina-Martinez must “show a reasonable probability
that, but for the district court’s misapplication of the Guidelines, he would have
received a lesser sentence.” United States v. Garcia-Carrillo, 749 F.3d 376, 379
(5th Cir. 2014) (internal quotation marks and citation omitted). 1 The district
court imposed a prison sentence of 77 months, which is at the bottom of the
Guidelines range applied by the court and in the middle of the properly
calculated range. “[W]hen the correct and incorrect ranges overlap and the
defendant is sentenced within the overlap, ‘we do not assume, in the absence of
additional evidence, that the sentence affects a defendant’s substantial
rights.’” Mudekunye, 646 F.3d at 290 (emphasis in original) (quoting United
States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010)).              Thus, because his
sentence fell within both the correct and incorrect Guidelines range, Molina-
Martinez acknowledges that our controlling caselaw obliges him to point to
“additional evidence” in the record, other than the difference in ranges, to show
an effect on his substantial rights. United States v. Pratt, 728 F.3d 463, 481–
82 (5th Cir. 2013). Record evidence that the Guidelines range was a “primary
factor” in sentencing may be sufficient “additional evidence.” Id. at 482. In
Pratt, the district court affirmatively stated on the record that it felt a within-
Guidelines sentence was appropriate and that it was choosing a sentence in




        1Although Molina-Martinez contends that an error in the Guidelines calculations
should be considered presumptively prejudicial, he concedes that the issue is foreclosed by
our precedent and raises the argument only to preserve it for further review.
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                                      No. 13-40324
the middle of the Guidelines range; we noted that this was evidence that the
Guidelines range was a primary factor in sentencing. Id. 2
       Molina-Martinez has not shown additional evidence that the sentence
affected his substantial rights. The mere fact that the court sentenced Molina-
Martinez to a low-end sentence is insufficient on its own to show that Molina-
Martinez would have received a similar low-end sentence had the district court
used the correct Guidelines range. See United States v. Jones, 596 F.3d 273,
279 (5th Cir. 2010). The district court made no explicit statement suggesting
that the Guidelines range was a primary factor in sentencing. Neither the
parties’ anchoring of their sentencing arguments in the Guidelines nor the
district court’s refusal to grant the government’s request for a high-end
sentence of 96 months is “additional evidence” that the sentence affected
Molina-Martinez’s substantial rights. Accordingly, Molina-Martinez has not
established plain error warranting reversal by this court. See Puckett, 556 U.S.
at 135. The judgment of the district court is AFFIRMED.




       2 The court noted also in Pratt that there was uncertainty whether an overlap existed
at all between the Guidelines range utilized and the correct range. See Pratt, 728 F.3d at
482.
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