                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3017
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                         Jairo Geovanny Escareno Chavez

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                for the Southern District of Iowa - Central Division
                                  ____________

                          Submitted: September 25, 2018
                             Filed: January 11, 2019
                                  [Unpublished]
                                 ____________

Before COLLOTON, BEAM, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

       Jairo Geovanny Escareno Chavez (“Escareno”) pled guilty to conspiracy to
distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, as
well as conspiracy to launder monetary instruments in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) and 1956(h). He now appeals his sentence of 71 months of
imprisonment, arguing the district court1 mishandled his withdrawal of an objection
to a sentencing enhancement and erroneously refused his requests for a downward
departure and variance. Upon review, we affirm.

       Escareno first argues the district court erroneously applied a sentencing
enhancement for engaging in the marijuana conspiracy while on probation for another
offense even though Escareno withdrew his objection to the enhancement. See U.S.
Sentencing Guidelines (“U.S.S.G.”) § 4A1.1(d) (U.S. Sentencing Comm’n 2016)
(directing the addition of two points “if the defendant committed the instant offense
while under any criminal justice sentence, including probation”). Prior to sentencing,
Escareno objected to a recommendation in his presentence investigation report
(“PSR”) that the enhancement apply for offense conduct during probationary periods
that expired by at least the end of 2012. At the sentencing hearing, a probation officer
explained that the PSR’s criminal history computation failed to include an additional
probationary period that expired in July 2015. As a result, Escareno withdrew his
objection, stating that it had not been directed at the July 2015 probationary period
and that “as a practical matter that’s not going to change . . . the criminal history
category of III.” Escareno now argues the district court still applied the enhancement
in error, apparently because Escareno never intended to admit engaging in offense
conduct as early as July 2015.

       Because Escareno raises this issue for the first time on appeal, our review is for
plain error.2 United States v. O’Connor, 567 F.3d 395, 397 (8th Cir. 2009). “Plain
error is an error that is plain and that affects a defendant’s substantial rights.” Id.

      1
       The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
      2
        We need not decide whether Escareno intentionally relinquished or abandoned
his right to raise this issue on appeal, see United States v. Murphy, 248 F.3d 777, 779
(8th Cir. 2001) (citing United States v. Olano, 507 U.S. 725, 733 (1993)), because we
do not find plain error here.

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“We will correct a plain error only if it ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting United States v. Roundtree,
534 F.3d 876, 878 (8th Cir. 2008)).

       Here, as Escareno’s counsel recognized, the additional two points did not affect
Escareno’s substantial rights because they merely raised his criminal history score
from four to six points — both of which trigger criminal history Category III and
result in the same guidelines range. See U.S.S.G. § 5A. Therefore, even assuming
(without deciding) there was error, Escareno cannot show “a reasonable probability
that he would have received a lighter sentence but for the error.” United States v.
Franklin, 695 F.3d 753, 757 (8th Cir. 2012) (quoting United States v. Molnar, 590
F.3d 912, 915 (8th Cir. 2010)).

      Escareno also argues the district court erred in denying his request for a
downward departure. At sentencing, the district court denied Escareno’s request for
a downward departure based on overstated criminal history. See U.S.S.G.
§ 4A1.3(b)(1). “A district court’s refusal to grant a downward departure under the
sentencing guidelines is unreviewable unless the court had an unconstitutional motive
in denying the request or failed to recognize that it had the authority to depart
downward.” United States v. Dixon, 650 F.3d 1080, 1084 (8th Cir. 2011).

       Here, Escareno does not argue unconstitutional motive, and the district court
expressly acknowledged its authority to depart downward. Thus we conclude the
district court’s denial is unreviewable.

      Finally, Escareno argues the sentence became substantively unreasonable when
the district court gave inappropriate weight to the fact Escareno maintained a
marijuana grow operation at his residence in Colorado (which he erroneously believed




                                         -3-
to be legal),3 and when it refused to vary downward given his “light” criminal history.
“We review the substantive reasonableness of the sentence[] under a deferential abuse
of discretion standard,” recognizing that district courts “have wide discretion to weigh
the [18 U.S.C.] § 3553(a) factors.” United States v. Wilder, 597 F.3d 936, 946 (8th
Cir. 2010).

       Here, Escareno’s sentence was within the correctly-calculated guidelines range
(70 to 87 months), and we thus accord it a presumption of reasonableness. See United
States v. Heath, 624 F.3d 884, 888 (8th Cir. 2010). Additionally, in weighing the
factors prescribed by § 3553(a), the district court expressly acknowledged Escareno’s
argument that growing marijuana in Colorado did not necessarily indicate a
heightened role in the conspiracy. It also recognized that none of Escareno’s six prior
offenses resulted in imprisonment. But it weighed these considerations in light of
several competing factors, including the seriousness of Escareno’s underlying offense,
unobjected-to PSR paragraphs connecting the grow operation to a lead co-conspirator,
Escareno’s multiple disciplinary reports during incarceration while awaiting
sentencing, and his separate conviction for money laundering. We conclude the
district court made “an individualized assessment based on the facts presented” and
did not abuse its discretion by imposing a sentence near the bottom of the guidelines
range. United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009) (quoting Gall v.
United States, 552 U.S. 38, 50 (2007)).


      3
        To the extent Escareno also argues the district court committed procedural
error by finding that the grow operation was connected to the conspiracy, we disagree.
While a district court commits procedural error by, among other things, “selecting a
sentence based on clearly erroneous facts,” United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc), here the district court relied on unobjected-to PSR
paragraphs indicating that Escareno’s brother — a co-defendant who resided and
distributed marijuana in Iowa — had joint control over the operation. See United
States v. Trevino, 829 F.3d 668, 675 (8th Cir. 2016) (“A fact in a PSR to which the
defendant has not specifically objected is a fact admitted by the defendant.” (internal
quotation marks omitted)). Thus the district court’s finding was not clearly erroneous.

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For the foregoing reasons, we affirm.

                ______________________________




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