     Case: 09-40099     Document: 00511041870          Page: 1    Date Filed: 03/04/2010




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

                                                  FILED
                                                                            March 4, 2010
                                       No. 09-40099
                                                                       Charles R. Fulbruge III
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CASEY EDWARD LEE,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                          USDC No. 5:08-CR-1454-ALL


Before KING, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        For Casey Edward Lee’s challenge to his sentence, primarily at issue is
whether the district court committed reversible plain error in determining Lee’s
criminal-history category under the advisory Sentencing Guidelines when,
relying on the presentence investigation report (PSR), it assessed separate
criminal-history points for each of his three most-recent convictions.
AFFIRMED.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                          I.
      In August 2008, Lee was arrested at a United States Border Patrol
checkpoint near Laredo, Texas, when an undocumented alien was found in the
trunk of the automobile Lee was driving. Lee pleaded guilty to unlawfully
transporting an undocumented alien within the United States for financial gain.
See 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(i).
      The PSR recommended a base offense level of 18, including an
enhancement for “intentionally or recklessly creating a substantial risk of death
or serious bodily injury to another person”. See U.S.S.G. § 2L1.1(b)(6) (2008)
(increasing any offense involving such reckless endangerment to 18). The PSR
also recommended a three-level reduction for timely acceptance of responsibility.
See U.S.S.G. § 3E1.1(a) (providing two-level reduction for acceptance of
responsibility); U.S.S.G. § 3E1.1(b) (providing additional one-level reduction for
timely acceptance of responsibility, contingent upon Government’s motion
requesting it). The Government, however, did not make the requisite request for
the greater, three-level reduction.
      For Lee’s criminal history, the PSR provided, inter alia, the following
information regarding five prior convictions, resulting in ten criminal-history
points: felony theft (“date of arrest” 1/4/02, “date sentence imposed” 7/21/03, two
points); misdemeanor theft (“date of arrest” 2/8/02, “date sentence imposed”
7/24/03, one point); forgery of a financial instrument (“date of arrest” 9/23/03,
“date sentence imposed” 2/11/05, two points); forgery of a financial instrument
(“date of arrest” 12/5/03, “date sentence imposed” 2/11/05, two points); and
burglary of a habitation with intent to commit theft (“date of arrest” 4/15/04,
“date sentence imposed” 2/11/05, three points). Lee received three additional
criminal-history points because he committed the last offense (burglary) while
on parole for a prior offense and within two years of his release. See U.S.S.G.
§ 4A1.1(d), (e). Based on this total of 13 criminal-history points, the PSR placed
Lee in criminal-history-category VI.

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      Lee filed written objections to the PSR, challenging the reckless-
endangerment enhancement and requesting a sentence below the advisory
guidelines range. He asserted the guidelines range provided an unreasonable
sentence because ten of his criminal-history points were attributable to “three
cases in which he was sentenced on the same day” (11 February 2005), but he
did not object to the calculation of his criminal-history points.
      In testifying at sentencing, Lee discussed his criminal history and the
harm it caused his family, explaining he was tempted to steal after incurring
debt helping his father buy medication. He apologized and stated he was “very
remorseful”. The district court responded: “In looking at your PSR, you’re a
thief”. It also noted that Lee’s stealing was a burden on the family he claimed
to be helping.
      The district court granted the recommended two-level acceptance-of-
responsibility reduction, resulting in an offense level of 16, and adopted the
recommended criminal history of VI.         Accordingly, the advisory guideline
sentencing range was 46–57 months.          After the Government requested a
sentence in the lower half of that range, the district court imposed a 51-month
sentence and explained its reasoning:
      Looking at the presentence report and not listening to the defendant,
      considering all the facts that are just outlined on paper, a variance
      would be appropriate in this case, but it would be an upward
      variance. It would not be a variance below as counsel has requested,
      because you need a sentence that is going to stop you in your tracks
      and cause you to re-think what you’ve been doing because you’re not
      moving in the right direction. I do understand the problems that
      your family has had. And so far, you’ve added to those problems,
      and you’re certainly doing that by being here today because you are
      going to have to serve a period of incarceration. . . .

      Listening to you, I think that you do understand the problems
      you’ve created. And so for having listened to you, I think it’s not
      necessary to go above the guideline range in your particular case
      either to provide a proper punishment or to deter future criminal
      conduct. . . .

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      What I’m going to do in your case is, I’m going to impose a midrange
      sentence. And I will tell you that that mid-range sentence is going to
      be a 51 month sentence. It’s nine months lower than it would have
      been had I not listened to you here today. Because I think the facts of
      your case, and your criminal history in particular and your drug use
      in particular, would justify a five year term, would justify 60 months
      in order to deter future criminal conduct and to provide proper
      punishment. But there’s something about you that I believe that it
      would be appropriate to go below that number if I—and I am
      convinced that this has gotten your attention. . . .

      So I do believe that a sentence at the middle of the guideline range
      would serve all those purposes and would provide proper deterrence
      and it would not be greater than necessary in this particular case.
      So that would be the—That’s my determination in this matter, and
      that is that a mid-range sentence of 51 months is appropriate under
      all the circumstances of the case, and in particular, the defendant’s
      history and characteristics. . . .

      [T]he Court was looking at a sentence of 60 months based upon [the
      §] 3553 factors and not the guidelines in this case. The guidelines
      are completely a minor part of the overall sentence in this matter. I
      departed for the reasons I stated from what I would have imposed in
      the case. But it would have been the Court’s determination of a
      sentence at that term based upon the [§] 3553 factors . . . .

(Emphasis added.)
      Lee did not object to either the calculation of his criminal-history category
or the reasonableness of his sentence. After filing a notice of appeal, however,
Lee filed an unopposed motion to supplement the record with state-court
documents related to his three most recent convictions.         These documents
include judgments, all three of which credit Lee with time served from the same
date. A motions panel of our court granted the motion.
                                        II.
      Lee challenges the criminal-history assessment and the reasonableness of
his sentence. These contentions rely heavily on the state-court documents with
which he supplemented the record on appeal.          According to Lee, all three

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judgments’ crediting him with time served from the same date shows that no
intervening arrests separated commission of his three most-recent offenses. (As
discussed infra, finding no intervening arrests could affect Lee’s advisory
guidelines sentencing range.)
      An oral-argument panel may review a motions panel’s ruling and overturn
it where necessary. Mattern v. Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir.
1997) (citing United States v. Bear Marine Servs., 696 F.2d 1117, 1119 (5th Cir.
1983)), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006).      The Government, however, did not oppose the
supplementation; and we see no justification for disturbing the motions panel’s
ruling. Therefore, the record on appeal consists of the record at sentencing, plus
the documents introduced through Lee’s motion to supplement.                These
documents being in the record on appeal does not, however, lessen Lee’s burden
of showing reversible plain error, discussed infra, resulting from his failing to
object in district court regarding the intervening-arrests and reasonableness-of-
sentence issues presented here.
                                        A.
      Lee contends the district court plainly erred by adopting the PSR’s
criminal-history calculation. According to Lee, the PSR incorrectly assessed
separate criminal-history points for each of his three most-recent convictions.
He maintains:       the state-court documents submitted by his motion to
supplement show that no intervening arrests separated these crimes; and,
therefore, for criminal-history purposes, they should be counted as a single
sentence. See U.S.S.G. § 4A1.2(a)(2) (“If there is no intervening arrest, prior
sentences are counted separately unless . . . (B) the sentences were imposed on the
same day. Count any prior sentence covered by . . . (B) as a single sentence.”
(emphasis added)).
      As Lee concedes, because he did not preserve this issue in district court,
our review is only for plain error. See United States v. Mondragon-Santiago, 564

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F.3d 357, 361–65 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). Reversible plain
error exists where a clear or obvious error affects defendant’s substantial rights.
E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129
S. Ct. 962 (2009); see also Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
Even then, we have discretion whether to correct such an error and, generally,
will do so only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Baker, 538 F.3d at 332.
      “Questions 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). In other words, “[f]or a fact issue to be properly
asserted [for the first time on appeal], it must be one arising outside of the
district court’s [earlier] power to resolve”—in this instance, at sentencing. Id.;
see also United States v. Easter, 981 F.2d 1549, 1556 (10th Cir. 1992) (“[P]lain
error review is not appropriate when the alleged error involves the resolution of
factual disputes. . . . It is untenable to suggest that a trial court or prosecutor
was ‘derelict’ in failing to recognize an alleged error based on factual issues
never raised, much less litigated.”).
      In asserting that this rule is not as categorical as our precedent shows it
to be, Lee cites United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006),
where our court found plain error in the district court’s misapplication of the
guidelines to a date range that was accurately represented in the PSR. In that
instance, the facts in the PSR were not at issue, only the district court’s
application of the guidelines to those facts.          Therefore, Arviso-Mata is
distinguishable: Lee challenges the facts contained in the PSR, not merely the
district court’s application of the guidelines to them.
      Lee also cites persuasive authority from the District of Columbia Circuit,
United States v. Saro, 24 F.3d 283, 291 (1994), to support his contention that our
court should depart from our categorical rule that questions of fact capable of
resolution in district court cannot constitute plain error, see Lopez, 923 F.2d at

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50. Saro created an exception to this rule for situations where the PSR’s factual
findings are “internally contradictory, wildly implausible, or in direct conflict
with the evidence that the sentencing court heard at trial”. See Saro, 24 F.3d at
291. Of course, because Lee pleaded guilty, there was no trial; and, it does not
appear that the other two exceptions exist here. In any event, our precedent
contains no such exceptions; therefore, it is unnecessary to consider whether Lee
has shown such problems exist in his PSR.
      Obviously, the intervening-arrest question could have been resolved upon
proper objection at sentencing. Accordingly, our precedent precludes finding
error in the district court’s reliance on the PSR. See Lopez, 923 F.2d at 50. In
the alternative, as discussed infra, Lee cannot satisfy the individual elements
required for reversible plain error.
                                        1.
      First, Lee must show a clear or obvious error. United States v. Olano, 507
U.S. 725, 734 (1993) (“‘Plain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’”); see also Baker, 538 F.3d at 332. Lee would have us find such error
in the district court’s crediting the PSR’s listing three separate arrest dates. As
noted, Lee concedes he neither presented evidence at sentencing rebutting the
PSR nor challenged its factual findings.
      Generally, a district court may rely on unobjected-to facts in the PSR.
E.g., United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir.) (“When a district
court relies on information in a PSR, ‘the defendant bears the burden of
demonstrating that the information is unreliable or untrue.’” (quoting United
States v. Rome, 207 F.3d 251, 254 (5th Cir. 2000))), cert. denied, 130 S. Ct. 394
(2009). A district court’s reliance on such facts will not constitute clear error
where the defendant does not both object and submit evidence to rebut the PSR’s
facts. See United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995) (holding “if no
relevant affidavits or other evidence is submitted to rebut the information
contained in the PSR, the court is free to adopt its findings without further

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inquiry or explanation”). In finding no clear error, Vital held: “[Defendant]
failed to present any evidence to support his objection to the court’s reliance on
the information set forward in the PSR pertaining to [the challenged] testimony.
Consequently, the district court’s reliance on the PSR was not clearly erroneous”.
Id.
         In sum, for the intervening-arrests issue, Lee neither objected nor
presented evidence to the district court rebutting the PSR. Therefore, he cannot
show the requisite clear or obvious error. See Olano, 507 U.S. at 734; see also
United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993) (finding no plain error
where, “[i]n the absence of any objection, the district court simply adopted the
recommendation of the . . . PSR”).
         This holding stands even in the light of the state-court documents
introduced through Lee’s motion to supplement. It is true that, for questions of
law, an error may be plain so long as it is apparent at the time of appellate
consideration. Johnson v. United States, 520 U.S. 461, 467–68 (1997); United
States v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. 2008). Precedent does not,
however, extend this rule to questions of fact. There is a distinction between
finding reversible plain error where the law changed between a district court’s
decision and appellate review, see Johnson, 520 U.S. at 467–68, and finding clear
or obvious error where an appellant failed to contradict in district court evidence
relied upon in making a factual finding. An appellant challenging a factual
finding as clear or obvious error cannot rely on his own creation of a “change” in
the facts by presenting, for the first time on appeal, contradictory evidence that
was available—but not introduced—in district court.
                                        2.
         In the alternative, Lee has not satisfied the next requirement for
reversible plain error: that the error affected his substantial rights. See Baker,
538 F.3d at 332. An error affects substantial rights when “defendant can show
a reasonable probability that, but for the district court’s misapplication of the

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Guidelines, he would have received a lesser sentence”. United States v. Villegas,
404 F.3d 355, 364 (5th Cir. 2005). “To meet this standard the proponent of the
error must demonstrate a probability sufficient to undermine confidence in the
outcome.” Mondragon-Santiago, 564 F.3d at 364 (quoting United States v.
Mares, 402 F.3d 511, 521 (5th Cir. 2005)) (internal quotation marks omitted).
Mondragon-Santiago also noted that defendant’s burden “should not be too
easy”, and explained that defendant cannot prevail if the “effect of the error is
uncertain”. Id. (quoting Mares, 402 F.3d at 521). “Otherwise, the prejudice
standard would not serve its purpose of ‘enforc[ing] the policies that underpin
[plain-error review] generally, to encourage timely objections and reduce
wasteful reversals by demanding strenuous exertion to get relief for unpreserved
error.’” Mares, 402 F.3d at 521 (quoting United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004)) (first alteration in original) (emphasis added).
      Lee asserts that, because the PSR shows he was sentenced for three of his
prior offenses on the same day, the state-court documents’ claimed showing
there were no intervening arrests should result in nine total criminal-history
points (instead of 13) and a criminal-history category of IV (instead of VI). See
U.S.S.G. § 4A1.2(a)(2).    This criminal-history category would result in an
advisory guidelines range of 33 to 41 months (instead of 46–57).
      The mere existence of a discrepancy between the calculated range and
Lee’s desired range does not, however, necessarily demonstrate a probability of
error sufficient to undermine confidence in the outcome. Lee contends that,
because the district court stated that Lee’s allocution prompted it to change his
sentence from 60 months (three above the advisory sentencing range) to a “mid-
range sentence of 51 months”, it follows that a lower advisory range would have
resulted in a lower sentence. But, as noted, the district court was clear that the
sentence was not based on the advisory guidelines:
      [T]he Court was looking at a sentence of 60 months based upon [the
      §] 3553 factors and not the guidelines in this case. The guidelines


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      are completely a minor part of the overall sentence in this matter.
      I departed for the reasons I stated from what I would have imposed
      in the case. But it would have been the Court’s determination of a
      sentence at that term based upon the [§] 3553 factors . . . .

(Emphasis added.)
      Nor is the district court’s description of the imposed sentence as a “mid-
range sentence of 51 months” determinative. The district court may have found
that the appropriate sentence happened to fall in the middle of that calculated
range; it is not certain that it found the sentence appropriate because it was mid-
range. Cf. United States v. Jasso, 587 F.3d 706, 714 n.11 (5th Cir. 2009) (finding
no effect on substantial rights where district court incorrectly calculated
sentencing range, then stated defendant’s sentence should be at the bottom of
it; that sentence was in the middle of correct range, and district court’s bottom-
of-range statement only showed it had “concluded it would be reasonable to
place the defendant in the bottom of that [incorrect] range”, not necessarily the
bottom of any range).
      In sum, the district court made clear that the advisory guidelines range
was only a minor factor in its determining Lee’s sentence. It gave no indication,
and Lee fails to show with any certainty, that a lower range would have resulted
in a lower sentence. Therefore, even if there were clear or obvious error in the
criminal-history calculation, it would not be reversible because Lee’s substantial
rights were not affected. See Mondragon-Santiago, 564 F.3d at 364. Restated,
there was no resulting prejudice.
                                        3.
      Finally, as yet another alternative basis, even if Lee could clear these first
two extremely high hurdles, we still would retain discretion to reverse—plain-
error relief is “permissive, not mandatory”. See Olano, 507 U.S. at 735. Along
that line, as discussed, we generally would correct the reversible plain error only




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if Lee could show our not doing so would seriously affect the fairness, integrity,
or public reputation of the judicial proceedings. See Baker, 538 F.3d at 332.
      In the light of this record, especially the district court’s explicitly
grounding Lee’s sentence on the § 3553(a) factors, rather than on the advisory
guidelines sentencing range, the claimed error is not one that seriously affects
the fairness, integrity, or public reputation of the proceedings. If reversal turned
on this prong of plain-error review—which it does not, because Lee fails to
satisfy the other two—Lee would fail to justify an exercise of our discretion. See
United States v. Ellis, 564 F.3d 370, 378–79 (5th Cir.) (“Not every error that
increases a sentence need be corrected by a call upon plain error doctrine. . . .
And even if an increase in a sentence be seen as inevitably ‘substantial’ in one
sense it does not inevitably affect the fairness, integrity, or public reputation of
judicial process and proceedings.”), cert. denied, 130 S. Ct. 371 (2009).
                                        B.
      Lee also challenges the substantive reasonableness of his sentence,
asserting that the district court: misapplied the guidelines; failed to consider the
individual circumstances of his case; and relied too heavily on his criminal
history. He also protests the Government’s claimed arbitrary refusal to move for
the greater three-offense-level reduction for timely acceptance of responsibility.
      Generally, review of a sentence’s substantive reasonableness is for abuse
of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). As noted, Lee did
not, however, object to the reasonableness of his sentence. Therefore, as he
concedes, review is again only for plain error. See United States v. Peltier, 505
F.3d 389, 391–92 (5th Cir. 2007). (Lee did request a downward variance and a
downward departure.       He acknowledges that our precedent forecloses his
contention that this constituted an objection to his sentence’s reasonableness,
and raises the issue to preserve it for possible Supreme Court review.)
      Under the above-referenced, less-exacting, abuse-of-discretion standard
of review, a within-guidelines sentence is afforded a presumption of

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reasonableness. See Rita v. United States, 551 U.S. 338, 347 (2007). Lee’s
reasonableness challenge ultimately turns on whether the district court plainly
erred in the criminal-history calculation and, thus, whether his 51-month
sentence falls within the advisory guidelines range and receives the
reasonableness presumption. Because, as discussed supra, the district court did
not plainly err in calculating his range, the sentence benefits from that
presumption. Likewise, Lee’s plain-error-based disagreement with the district
court’s weighing of the § 3553(a) factors fails to overcome the presumption. See
generally Rita, 551 U.S. at 347 (discussing presumption); see also United States
v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.) (“Appellate review is highly
deferential as the sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) with respect to a particular defendant.”), cert.
denied, 129 S. Ct. 328 (2008).
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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