     Case: 15-20060      Document: 00513380430         Page: 1    Date Filed: 02/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20060
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 15, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk
                                                 Plaintiff–Appellee,
versus
RICARDO MARTINEZ-ESPINOZA, Also Known as Ricardo Martinez,
Also Known as Ricardo Espinosa Martinez,
Also Known as Ricardo Espinoza Martinez,
Also Known as Ricardo Martinez-Martinez,
                                                 Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-397-1




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Ricardo Martinez-Espinoza appeals his sentence for being an alien found
unlawfully in the United States after having been previously deported, in vio-
lation of 8 U.S.C. § 1326. For the first time on appeal, he maintains that his
criminal history score was incorrectly calculated. As he concedes, because he

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20060

did not raise that challenge in the district court, review is for plain error only.
See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To demonstrate
plain error, he must show a clear or obvious error that affects his substantial
rights; even if he makes that showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public repute-
tion of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).

      Martinez-Espinoza contends that he should not have received any crim-
inal history points under U.S.S.G. § 4A1.1(c) for his 2006 misdemeanor convic-
tion of evading arrest, for which he received only 180 days of probation, and he
further avers that he should have received only one criminal history point
under § 4A1.1(c), rather than two points under § 4A1.1(b), for his 2012 illegal-
reentry conviction, because it resulted in only a 45-day prison term. The gov-
ernment concedes the error.

      Nevertheless, as the government urges, Martinez-Espinoza has not
shown that the error affected his substantial rights. Even without the two
points, Martinez-Espinoza’s criminal history remains at category V, and the
applicable guideline range of 21 to 27 months is unchanged. See U.S.S.G.
Ch. 5, Pt. A (Sentencing Table); see also United States v. Garcia-Gonzalez,
714 F.3d 306, 317 (5th Cir. 2013). Although Martinez-Espinoza claims that
the district court based its sentence on the erroneous belief that he had
attained the highest number of criminal history points under category V, the
record indicates that the court imposed a high-end guideline sentence because
of the seriousness and escalation of Martinez-Espinoza’s criminal history,
which included drug offenses, two deportations, and a recent firearms offense.

      Thus, Martinez-Espinoza cannot show a reasonable probability that, but
for the criminal-history computation error, he would have received a lesser
sentence. See United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015).


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                                 No. 15-20060

Consequently, he has not demonstrated any reversible plain error. See Puck-
ett, 556 U.S. at 135.

      The judgment of sentence is AFFIRMED.




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