     Case: 10-50330     Document: 00511509885          Page: 1    Date Filed: 06/15/2011




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

                                                  FILED
                                                                            June 15, 2011

                                       No. 10-50330                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellant

v.

RICARDO VENTURA,


                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 7:09-CR-292-9


Before SMITH, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
        The government appeals the sentence imposed by the district court on the
grounds that it failed to consider the defendant’s criminal history as set forth in
the revised PSR. Because any error committed by the district court was not clear
or obvious, we affirm.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50330

                                         I.
      Ricardo Ventura pleaded guilty to conspiracy to distribute and posses with
intent to distribute cocaine. The initial PSR indicated that Ventura had no
criminal history points. Because of his lack of criminal history, Ventura satisfied
the requirements for application of the safety valve. See U.S.S.G. § 5C1.2(a)(1).
The initial PSR further recommended a three-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1. A revised PSR was submitted the
day before Ventura’s sentencing hearing. The revised PSR amended Ventura’s
criminal history score from I to II, to reflect two prior state court convictions for
misdemeanor possession of marijuana. The revision to the criminal history score
resulted in Ventura no longer being eligible for application of the safety valve
reduction or the three-level reduction for acceptance of responsibility.
      At sentencing, Ventura objected to the amended PSR’s recommendation
that he was no longer eligible for a three-level reduction for acceptance of
responsibility. In response to Ventura’s objection, the district court stated it
would “give Ventura the benefit of the doubt [and] just go with the original
calculation” on the three-level reduction for acceptance of responsibility. When
imposing the sentence, the district court, without stating its reasons, concluded
that Ventura’s total offense level was 17, his criminal history category was I, and
that his guideline sentencing range was 24 to 30 months. The district court
sentenced Ventura to 27 months of imprisonment. After the sentence was
imposed, the probation officer alerted the court that Ventura was no longer
eligible for the safety valve reduction and therefore the mandatory minimum
sentence would apply. The district court stated “if the [g]overnment wants to
appeal, they can appeal. I’m not going to go back over that.” The government
made no objections during the sentencing hearing.




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                                        No. 10-50330

                                               II.
       On appeal, the government argues for the first time that the district court
committed error by applying the safety valve reduction when the revised PSR
indicated that Ventura had more than one criminal history point. In response
to the government’s argument, Ventura asserts that pursuant to U.S.S.G.
§ 4A1.2(c) his misdemeanor possession of marijuana offenses, for which he paid
only a fine, should not be calculated as part of his criminal history score.
Ventura argues that his marijuana offenses are Class B misdemeanors that
carry the same punishment as the offenses listed in § 4A1.2(c) and are therefore
“similar to” the listed offenses.
                                              III.
       Because the government failed to object to the district court’s calculation
of Ventura’s criminal history score and application of the safety valve, this court
reviews the government’s arguments on appeal for plain error. See United States
v. Willingham, 497 F.3d 541, 544 (5th Cir. 2007) (reviewing district court’s
downward departure for plain error when government raised error for first time
on appeal).1 Under our plain error standard, the government must show an error
that is plain and that affects substantial rights. See United States v. Duhon, 541
F.3d 391, 397 (5th Cir. 2008). Further, “we cannot correct an error that was not
preserved unless the error ‘seriously affect[s] the fairness, integrity or public



       1
         After the district court imposed the sentence and while it was recommending a drug
treatment program, the probation officer alerted the district court to the applicability of the
safety valve. The probation officer’s statements after the sentence had been imposed were
insufficient to preserve error on behalf of the government. The Probation Department is an
arm of the court, not a representative of the government’s interests. See United States v.
Talbert, 501 F.3d 449, 453 (5th Cir. 2007). Counsel for the government spoke only once at the
sentencing hearing—to state his appearance. The government had at least two opportunities
to object to the district court’s sentence when the alleged error could have been corrected, but
did not. As such, the government failed to make its position clear to the district court such that
any objection would be futile. See United States v. Krumnow, 476 F.3d 294, 296-97 (5th Cir.
2007).

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                                  No. 10-50330

reputation of judicial proceedings.’” Id. (quoting United States v. Olano, 507 U.S.
725, 732 (1993)).
      The district court may not impose a sentence below the statutory
minimum sentence unless the government moves for a sentence reduction based
on the defendant’s substantial assistance or the defendant qualifies for a
safety-valve sentence reduction as set forth in 18 U.S.C. § 3553(f)). United
States v. Harper, 527 F.3d 396, 411 (5th Cir. 2008). The government did not
move for a reduction of Ventura’s sentence. Thus, the district court committed
error if it improperly applied the safety value reduction. The safety valve does
not apply when a criminal defendant’s history score is more than I. U.S.S.G. §
5C1.2(a)(1). In this case, it would be error for the district court to apply the
safety value reduction to Ventura’s sentence if the possession offenses should not
have been counted as part of his criminal history score. If the possession offenses
are not counted, Ventura would have a criminal history score of I.
      U.S.S.G. § 4A1.2(c)(2) provides that sentences for certain listed prior
offenses and “offenses similar to them, by whatever name they are known, are
never counted.” Ventura asserts that misdemeanor possession of marijuana is
similar to the listed offense of public intoxication. See U.S.S.G. § 4A1.2(c). At
least one court has disagreed with Ventura’s argument. See United States v.
Russell, 564 F.3d 200, 206-07 (3d Cir. 2009) (finding that it would be “absurd”
if a conviction of misdemeanor marijuana possession were not counted in a
defendant’s criminal history calculation); see also United States v. Collington,
2011 WL 971103, at *3 (4th Cir. Mar. 21, 2011) (slip copy) (holding that
defendant’s conviction for marijuana possession for which he received a fine
merits a criminal history point pursuant to § 4A1.2(c)); United States v. Johns,
347 F. App’x 240, 242 (7th Cir. 2009) (finding that possession of marijuana is not
similar to any of the offenses listed in § 4A1.2(c) and should thus be counted in
defendant’s criminal history score).

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                                  No. 10-50330

      We need not determine whether misdemeanor possession of marijuana is
not similar to public intoxication such that the district court committed error
when it failed to include the possession offenses in Ventura’s criminal history
score, because any error was not plain. Whether misdemeanor possession of
marijuana is similar to an offense listed in § 4A1.2(c)(2) has not previously been
decided by this court. Accordingly, any error by the district court was not clear
or obvious. See United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007); see
also United States v. Alcala-Avalos, 373 F. App’x 431, 433 (5th Cir. 2010)
(finding that a lack of published Fifth Circuit decisions renders any error “not
obvious”); United States v. Howell, 351 F. App’x 959, 960 (5th Cir. 2009); United
States v. Fambro, 526 F.3d 836, 847 (5th Cir. 2008). Moreover, the government
has failed to show that any error “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (citations
omitted). Ventura’s sentence should therefore be affirmed.
AFFIRMED.




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                                         No. 10-50330

JERRY E. SMITH, Circuit Judge, dissenting:


       The majority holds that the government bears the burden of showing that
the district court committed plain error by failing to include Ventura’s marihua-
na offenses in his criminal history score. That conclusion is incorrect, because
the court never ruled on whether they should be included. Instead, it arbitrarily
dismissed the revised presentence report (“PSR”) and sentenced Ventura accord-
ing to the original PSR, stating that “in this case I will give you the benefit of the
doubt. We will just go with the original calculation.” But the court cannot “just
go” with anything; it must have reasons for its judgment.1 It thus committed
plain error by ignoring relevant information about a criminal history without
reason.
       To avoid the obvious conclusion that the district court erred, Ventura rais-
es on appeal, for the first time, the argument that his marihuana convictions
should not be counted because they are “similar to” the offenses listed in
U.S.S.G. § 4A1.2(c). But we need not credit some imaginary “decision” that the
marihuana convictions were similar to the § 4A1.2(c) offenses. Indeed, nobody
even mentioned § 4A1.2(c) at the sentencing hearing, and there is no indication
that that guideline played a role in the decision. Because the court did not rule
on the § 4A1.2(c) question, there is no “decision” for us to review, for plain error
or otherwise.
       Even if we take the relevant error to be some imaginary “ruling” on wheth-
er to count Ventura’s marihuana convictions, the objection of the probation offi-
cer, set forth in the PSR, is sufficient to preserve the error. The majority cites


       1
         See 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence . . . .”); see also Rita v. United States,
551 U.S. 338, 356 (2007) (“The sentencing judge should set forth enough to satisfy the appel-
late court that he has considered the parties’ arguments and has a reasoned basis for exercis-
ing his own legal decisionmaking authority.”).

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                                   No. 10-50330

United States v. Talbert, 501 F.3d 449, 453 (5th Cir. 2007), to support its conclu-
sion that a probation officer cannot preserve error on behalf of the government.
But Talbert was a decision confirming a probation officer’s power to make cer-
tain sentencing decisions as an arm of the court. Talbert did not purport to ad-
dress the circumstances under which a probation officer may preserve error, and
it has nothing to say on that matter.
      Waiver is not some formalistic game of “gotcha” in which a party must
incant certain magic words. Instead, its purpose is highly functional, “to induce
the timely raising of claims and objections, which gives the district court the op-
portunity to consider and resolve them.” Puckett v. United States, 129 S. Ct.
1423, 1428 (2009). That purpose is perfectly served by allowing the probation
officer to bring an error to the court’s attention so it can correct it.
      Our adherence to the functional purpose of waiver doctrine is the reason
we have often relaxed the objection requirement if a party’s position is obvious
to the district court and any objection is futile. See United States v. Krumnow,
476 F.3d 294, 296-97 (5th Cir. 2007). After the probation officer pointed out that
the court should have considered the revised PSR when calculating Ventura’s
criminal history, the court commented, “Well, if the Government wants to ap-
peal, they can appeal. I’m not going to go back over that.” That comment indi-
cated that any further objection was both unnecessary and futile, because the
court was plainly aware of the error yet had already resolved not to correct it.
The policies of the waiver doctrine were protected, and we should review the
error de novo, not for plain error.
      Because I would vacate the sentence and remand for resentencing, I re-
spectfully dissent.




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