     Case: 16-50909      Document: 00513997936         Page: 1    Date Filed: 05/18/2017




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

                                    No. 16-50909
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          May 18, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff - Appellee
v.

OSCAR ALEXI MARTINEZ-LEON,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:15-CR-310


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Oscar Alexi Martinez-Leon appeals his sentence for illegal reentry
following removal, which was imposed following his guilty plea. Specifically,
he argues that the district court erred in applying, under U.S.S.G. § 2L1.2, an
eight-level adjustment for an aggravated felony based upon his Florida
burglary with assault/battery conviction, instead of a four-level adjustment for
“any other felony.” Under the former, his Guidelines range would be 18-24


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50909
months; under the latter, it would be 10-16 months. He received a sentence of
36 months of imprisonment and three years of supervised release.
      The Presentence Report (PSR) originally recommended a 16-level
increase for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2014),
yielding a guidelines range of 46-57 months (given Defendant’s criminal
history category of III). Defendant objected, arguing that the Florida burglary
with assault/battery was not a crime of violence due to its overbreadth. In so
doing, he specifically argued that the proper adjustment was eight levels under
§ 2L1.2(b)(1)(C). The district court granted Defendant’s objection and gave him
exactly what he argued was the correct adjustment – eight levels. The district
court then varied upward to 36 months because of his extensive and egregious
criminal history.
      Defendant now argues that the eight-level adjustment was too high and
should have been only four levels. He argues that this claim should be judged
under plain error review. We conclude that the proper standard of review is to
treat this ruling as invited error given that Defendant’s conduct of specifically
arguing that the eight-level adjustment was correct is quintessential “invited
error.” United States v. Salazar, 751 F.3d 326, 332 (5th Cir. 2014). Such errors
are reviewed only for manifest injustice. Id.
      Assuming arguendo that the eight level adjustment was error, that does
not automatically lead to a conclusion that Defendant’s sentence was
manifestly unjust. While errors in determining guidelines ranges are material,
we cannot say every such error creates a “manifest injustice,” a necessarily
very high standard to meet. Indeed, Defendant does not even attempt to meet
this standard. Having considered the record in this case and the district court’s
careful consideration of the totality of the Defendant’s circumstances before




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                                      No. 16-50909
varying upward, we conclude that Defendant’s sentence is not manifestly
unjust. 1
       AFFIRMED.




       1 For the same reason, if we were to assess this case under plain error, even assuming
arguendo the other three prongs were met, we would not exercise our discretion to correct
any such error. United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012)(en banc).
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