     Case: 09-41170 Document: 00511371777 Page: 1 Date Filed: 02/03/2011




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

                                                 FILED
                                                                          February 3, 2011
                                       No. 09-41170
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee
v.

JAMIE WESEVICH,

                                                   Defendant–Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-543-5


Before KING, D EMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Jamie Wesevich pleaded guilty to being a felon in possession of eight
firearms that had traveled in interstate commerce, in violation of 18 U.S.C.
§§ 922(g)(1) and 924 (a)(2).           The presentence report (“PSR”) incorrectly
calculated Wesevich’s criminal history score and category, and therefore
incorrectly stated a guideline punishment range of 120 to 150 months
imprisonment rather than a correct guidelines punishment range of 100 to 125
months imprisonment—both subject to a statutory maximum of ten years (120
months). The district court adopted the PSR and sentenced Wesevich to 120


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41170

months imprisonment and three years supervised release. Wesevich challenges
his sentence based on an incorrect guidelines range for the first time on appeal.
We affirm the district court.
                                             I
       The details of Wesevich’s crimes are not relevant to this appeal. Rather,
both Wesevich and the Government agree that the PSR and the district court
incorrectly calculated Wesevich’s criminal history at eleven points rather than
eight points, resulting in a criminal history category of V rather than IV.
Specifically, the PSR counted, and the district court assessed, one criminal
history point for an unlawful carrying of a firearm offense and two criminal
history points for possession of less than two ounces of marijuana, both
committed when he was seventeen years old. Wesevich committed and was
convicted on both offenses in 1999, and sentenced in 1999 and 2003.1 Because
the convictions and confinement resulting from their sentences occurred more
than five years before the instant offense, they should not have been included in
calculating Wesevich’s criminal history points. See USSG §§ 4A1.1(b), (c), &
comment (n.2), 4A1.2(d)(2) & comment (n.7).
       Wesevich’s guideline punishment range was stated as 120 to 150 months
incarceration rather than 100 to 125 months. Because the criminal activity to
which Wesevich pleaded guilty was subject to a statutory maximum term of
imprisonment of 120 months, the district court effectively calculated Wesevich’s
advisory guideline punishment range at 120 months rather than at effectively
100 to 120 months. Wesevich’s counsel asked the court at sentencing for a
downward departure to 84 months, which was denied when the district court



       1
        Wesevich was sentenced to probation in 1999 on the marijuana conviction. On
October 20, 2003, his probation was revoked and Wesevich was sentenced to 60 days in jail on
both the weapon conviction and the marijuana conviction. The criminal activity to which
Wesevich pleaded guilty in the instant case occurred on or about June 18, 2009.

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                                   No. 09-41170

sentenced Wesevich to 120 months imprisonment and three years supervised
release.
                                          II
      Because Wesevich did not object to his sentence on the grounds of an
incorrect criminal history calculation before the district court, we review for
plain error. United States v. Jasso, 587 F.3d 706, 709 (5th Cir. 2009). We find
plain error when: “(1) there was an error; (2) the error was clear and obvious;
and (3) the error affected the defendant’s substantial rights.”         Id. (quoting
United States v. Villegas, 404 F.3d 355, 358–59 (5th Cir. 2005)) (internal
quotation marks omitted). “If all three conditions are met an appellate court
may then exercise its discretion to notice a forfeited error but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 709 n.4 (quoting United States v. Ellis, 564 F.3d 370, 377
(5th Cir. 2009)) (internal quotation marks omitted).
      The parties agree and we find that the district court’s adoption of the
PSR’s erroneous criminal history score and sentencing range constituted an
error that is clear and obvious under the guidelines, thereby satisfying the first
two prongs for plain error review. See United States v. Blocker, 612 F.3d 413,
416 (5th Cir. 2010) (per curiam); United States v. Gordon, 346 F.3d 135, 138–39
(5th Cir. 2003). Wesevich must still show, however, that his substantial rights
have been affected by this erroneous calculation.
      “In inquiring whether the defendant-appellant’s substantial rights have
been affected, the ‘proper question here is whether the defendant can show a
reasonable probability that, but for the district court’s misapplication of the
Guidelines, he would have received a lesser sentence.’” Jasso, 587 F.3d at 713
(quoting Villegas, 404 F.3d at 364). Wesevich has failed to meet his burden.
“[W]hen the calculated and correct sentencing ranges overlap, this court has
‘shown considerable reluctance in finding a reasonable probability that the

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                                        No. 09-41170

district court would have settled on a lower sentence’ when the defendant’s
sentence falls within both the correct and incorrect guidelines ranges.” United
States v. Salas-Sanchez, No. 09-41243, 2010 WL 4368771, at *2 (5th Cir. Nov.
2, 2010) (per curiam) (quoting United States v. Campo-Ramirez, 379 F. App’x
405, 209 (5th Cir. 2010) (unpublished)). The sentence imposed of 120 months
falls within the correct advisory guidelines range of 100 months to, effectively,
120 months.
        “Put simply, where the resulting sentence falls within both the correct and
incorrect guidelines, we do not assume, in the absence of additional evidence,
that the sentence affects a defendant’s substantial rights.” Blocker, 612 F.3d at
416.    We have consistently refused to find plain error simply based on an
incorrect guidelines range when the correct and incorrect ranges overlap and the
sentence imposed falls within both sentencing ranges.2 See, e.g., Salas-Sanchez,
No. 09-41243, 2010 WL 4368771, at *2–3 (collecting cases with overlapping
guidelines ranges, including cases involving only one-month overlap); Campo-
Ramirez, 379 F. App’x at 408 (collecting cases with overlapping guidelines
ranges and noting that Price stands alone); see also United States v. Cruz-Meza,
310 F. App’x 634, 636–37 (5th Cir.), cert denied, 130 S. Ct. 86 (2009) (finding that
one-month overlap demonstrates “only a possibility of a lesser sentence but for
the error, not the requisite probability”). In these cases, mathematics alone does
not provide the requisite probability of a lesser sentence.




        2
         In the first case on the issue of overlapping guideline ranges to be heard by this Court,
United States v. Price, we vacated and remanded for resentencing where the defendant was
sentenced to the minimum within incorrect guidelines range, defendant’s sentence fell near
top of correct range, and the difference between minimum sentences under the two ranges was
eighteen months. 516 F.3d 285 (5th Cir. 2008). While this case involves effectively a
one-month overlap and a twenty-month gap between the minimum sentences of the two
ranges, Price is distinguishable because the record here is clear that district court considered
and rejected requests for a lesser sentence.

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                                    No. 09-41170

         Nor are there any facts in the record of Wesevich’s sentencing or anywhere
else that indicate a reasonable probability rather than the mere possibility that
the district court would have imposed a lesser sentence had it been aware of the
proper advisory guidelines range. The district court twice rejected arguments
that Wesevich should be subject to a lower sentence, either in the form of a
minor role reduction or as a downward variance from the advisory guidelines
range. Accordingly, Wesevich’s substantial rights were not affected by this
error.
                                       III
         For the foregoing reasons, we affirm Wesevich’s sentence.
         AFFIRMED.




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