     Case: 17-10582      Document: 00514358814         Page: 1    Date Filed: 02/22/2018




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

                                    No. 17-10582                              FILED
                                  Summary Calendar                     February 22, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JONATHON HERRERA, also known as Jonathon Herrera-Obregon,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-107-3


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jonathon Herrera was convicted by a jury of conspiracy to possess with
intent to distribute methamphetamine. The jury acquitted him of one count of
possession with intent to distribute cocaine and one count of possession of a
firearm in furtherance of a drug trafficking crime. Herrera was sentenced to
the statutory maximum of 480 months in prison.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10582

      Herrera argues that the district court erred by not severing the offense
of conviction from the charges of which he was acquitted. Even if joinder was
improper, Herrera has not shown clear, specific, and compelling prejudice that
resulted in an unfair trial. See United States v. Mays, 466 F.3d 335, 340 (5th
Cir. 2006). The facts and events that underlie the counts of acquittal arose in
connection with Herrera’s flight from prosecution for the offense of conviction.
While executing an arrest warrant issued after Herrera’s flight, United States
Marshals found the cocaine and gun that gave rise to the counts of acquittal.
The evidence as to the acquitted counts thus would have been admissible in a
trial solely on the count of conviction because the evidence reflected Herrera’s
consciousness of guilt and was developed in connection with the prosecution of
the present offense. See United States v. Bullock, 71 F.3d 171, 175 (5th Cir.
1995); United States v. Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994). In any event,
any possible prejudice was adequately cured by the jury instructions given by
the district court. See United States v. Thomas, 627 F.3d 146, 157 (5th Cir.
2010); Bullock, 71 F.3d at 175.
      Further, Herrera contends that his criminal history score was incorrectly
calculated because the district court did not treat two of his prior sentences as
separate sentences under U.S.S.G. § 4A1.2. He asserts that, but for the error,
he would not been assigned to a criminal history category of V, and would have
been placed in a criminal history category of IV. We review this claim for plain
error. See United States v. Castaneda, 740 F.3d 169, 171 (5th Cir. 2013).
      Even if Herrera’s criminal history score was erroneously calculated, any
error in that regard did not affect his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). Because Herrera’s total offense level was 42,
and the statutory maximum sentence was 480 months, his advisory guidelines
range would be would be 360 to 480 months – i.e., the guidelines range used in



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                                  No. 17-10582

this case – regardless of his criminal history score. See U.S.S.G. Ch. 5, Pt. A;
U.S.S.G. § 5G1.1(a); 21 U.S.C. §§ 841, 846. He thus was not sentenced under
an incorrect, higher guidelines range. See Molina-Martinez v. United States,
136 S. Ct. 1338, 1345 (2016). The record otherwise does not indicate that the
district court’s selection of sentence, which was based on the correct guidelines
range, was influenced by the criminal history category in which Herrera was
placed, i.e., there is no indication that the district court, if presented with the
same guidelines range but a lesser criminal history score, would have thought
differently about the sufficiency of the guidelines range or the propriety of the
statutory maximum sentence. Herrera therefore has not shown a reasonable
probability that, but for any error, he would have received a lesser sentence.
See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).
      Given the foregoing, the judgment of the district court is AFFIRMED.




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