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

                                                                     FILED
                                                                  September 12, 2008
                                 No. 08-50063
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

RAUL DE LA CRUZ

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 6:07-CR-88-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Raul De La Cruz appeals his 48-month sentence following his guilty plea
to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. For the first
time on appeal, De La Cruz argues that the district court erroneously calculated
his criminal history score by applying two criminal history points under U.S.S.G.
§ 4A1.1(e) because the instant offense was committed within two years from his
release from custody for a 1999 sexual-assault-of-a-child conviction. He asserts
that he was placed on deferred adjudication probation and was never actually

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-50063

in custody and that, in any event, he was discharged from probation more than
two years before the instant offense.
      As De La Cruz correctly concedes, because he did not object in the district
court, review is limited to the plain error standard. See United States v. Arviso-
Mata, 442 F.3d 382, 384 (5th Cir. 2006). Under the plain error standard, the
appellant must show that (1) there is an error; (2) the error is clear or obvious;
and (3) the error affects his substantial rights. United States v. Olano, 507 U.S.
725, 731-37 (1993). If these factors are established, the decision to correct the
forfeited error is within the sound discretion of the court, and the court will not
exercise that discretion unless the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. at 735-36.
      The district court calculated De La Cruz’s guidelines sentencing range as
46 to 57 months.      Although De La Cruz asserts that the district court
miscalculated his criminal history points, he concedes that the district court
nevertheless arrived at the appropriate criminal history category and that his
guidelines sentencing range was thus unaffected by this miscalculation. The
district court sentenced De La Cruz within a properly calculated guidelines
sentencing range. De La Cruz has not met his burden of showing that his
substantial rights were affected by the district court’s calculation of his criminal
history points. See Olano, 507 U.S. at 734.
      AFFIRMED.




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