      Case: 16-40868          Document: 00514058364              Page: 1        Date Filed: 07/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                            No. 16-40868                                     FILED
                                                                                          July 3, 2017

UNITED STATES OF AMERICA,                                                               Lyle W. Cayce
                                                                                             Clerk
                 Plaintiff - Appellee

v.

JOSE FLORES, true name Galvin Javier Flores Cantarero,

                  Defendant - Appellant
-----------------------------------------------------------------------------
Consolidated with 16-40890

UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

JOSE RICARDO FLORES, true name Calvin Xavier Flores Cantarero,
also known as Galvin Flores-Cantarero, also known as Jose Ricardo,
also known as Jose Flores,

                 Defendant - Appellant



                     Appeals from the United States District Court
                          for the Southern District of Texas


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
    Case: 16-40868    Document: 00514058364     Page: 2     Date Filed: 07/03/2017



                           No. 16-40868
                       Cons. w/ No. 16-40890
CARL E. STEWART, Chief Judge:
      Jose Ricardo Flores appeals his sentences for illegal reentry into the
United States and violating a condition of his supervised release. He contends
that the district court, which incorrectly believed that it lacked the authority
to run the sentences concurrently, erred by imposing consecutive sentences for
the offenses. For the reasons that follow, we AFFIRM.
                                       I.
      Flores pleaded guilty to one count of illegal reentry following
deportation, a crime that occurred on or about September 16, 2015. At the time
he illegally reentered the United States, Flores was subject to a two-year term
of supervised release, which had been imposed in March 2015 on a previous
illegal reentry conviction. Following the second illegal reentry, Flores was
charged with violating the terms of his supervised release. The district court
combined the sentencing hearing on the new illegal reentry conviction with a
hearing on the revocation of Flores’s supervised release.
      At sentencing, the district court determined that Flores’s Guidelines
range was 21–27 months’ imprisonment in the reentry case and 8–14 months’
imprisonment in the revocation case. Flores requested downward variances
from these ranges, asking for an 18-month term of imprisonment in the illegal
reentry case and a consecutive 6-month term in the revocation matter, for a
total sentence of 24 months.     The district court imposed a bottom-of-the-
Guidelines term of 21 months’ imprisonment in the illegal reentry case
(followed by three years of supervised release) and revoked Flores’s supervised
release and sentenced him within the advisory Guidelines range to 10 months’
imprisonment. The district court stated that the sentences of imprisonment
must run consecutively rather than concurrently, citing this court’s decision in

                                       2
     Case: 16-40868         Document: 00514058364            Page: 3      Date Filed: 07/03/2017



                                No. 16-40868
                           Cons. w/ No. 16-40890
United States v. Brown, 920 F.2d 1212 (5th Cir. 1991). Based on its belief that
Brown “clearly states that these sentences should be served consecutively,” the
district court imposed a total sentence of 31 months.
       The district court’s reliance on Brown, however, was erroneous, as the
Guidelines were amended in 2003 to give courts discretion to impose either
consecutive, concurrent, or partially concurrent sentences. See United States
v. Huff, 370 F.3d 454, 465 (5th Cir. 2004) (explaining that for defendants
“sentenced on or after November 1, 2003, the district court would have had
discretion to make its . . . sentence run concurrently (or partially concurrently)
with the previously imposed . . . sentence for supervised revocation (although
the Commission recommends that the sentence imposed be consecutive to that
for the revocation)”). Flores did not object to the error. Rather, defense counsel
responded: “We understand it’s consecutive. We’d simply note in defense of
that recommendation . . . that [the] revocation guidelines were always
advisory. So, in effect, we’re not asking for a consecutive sentence, even though
the net effect might be the same.” Flores timely appealed both sentences, and
the appeals were consolidated on the Government’s motion.
                                                 II.
       Because Flores did not object in the district court to the error he asserts
on appeal, we review for plain error. 1 See United States v. Cordova-Soto, 804
F.3d 714, 722 (5th Cir. 2015). To establish plain error, Flores must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he satisfies these


       1 Because the error Flores complains of is attributable to the district court’s belief that the

Brown decision was controlling—and not to any invitation or provocation by Flores—we reject the
Government’s assertion that the invited error doctrine applies. See United States v. Salazar, 751 F.3d
326, 332 (5th Cir. 2014) (citing United States v. Wells, 519 U.S. 482, 487–88 (1997)).
                                                  3
    Case: 16-40868     Document: 00514058364      Page: 4    Date Filed: 07/03/2017



                                  No. 16-40868
                            Cons. w/ No. 16-40890
three elements, this court will exercise its discretion to correct the error only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      As the Government concedes, the district court committed a clear or
obvious error in determining that it was required to run Flores’s sentences
consecutively. See Huff, 370 F.3d at 465. But even assuming this erroneous
understanding affected Flores’s substantial rights, we decline to exercise our
discretion to correct the error, because Flores has not established that “the
severity of the error’s harm demands reversal.” See United States v. Farrell,
672 F.3d 27, 36 (5th Cir. 2012) (quoting United States v. Ross, 77 F.3d 1525,
1539–40 (7th Cir. 1996)); see also Puckett, 556 U.S. at 135. This court has
indicated that reversal should be granted cautiously, explaining that “the rule
of forfeiture should bend slightly if necessary to prevent a grave injustice.”
United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc)
(citation omitted). Accordingly, the types of errors we will correct on plain
error review are “only” those which are “particularly egregious.” United States
v. Young, 470 U.S. 1, 15 (1985) (quoting United States v. Frady, 456 U.S. 152,
163 (1982)).
      Several factors weigh against exercising our discretion to correct the
error in this case. The Sentencing Commission’s relevant policy statements
recommend that sentences involving revocation of supervised release, such as
the sentence the district court imposed, run consecutively. See U.S.S.G. Ch. 7,
Pt. B, Intro. Comment (“It is the policy of the Commission that the sanction
imposed upon revocation is to be served consecutively to any other term of
imprisonment imposed for any criminal conduct that is the basis of the
revocation.”); U.S.S.G. § 7B1.3 cmt. n.4 (“[I]t is the Commission’s

                                         4
     Case: 16-40868        Document: 00514058364          Page: 5     Date Filed: 07/03/2017



                              No. 16-40868
                          Cons. w/ No. 16-40890
recommendation that any sentence of imprisonment for a criminal offense that
is imposed after revocation of probation or supervised release be run
consecutively to any term of imprisonment imposed upon revocation.”). Given
this fact, as well as the district court’s decision not to sentence Flores to the
minimum sentence it believed it had the discretion to impose, 2 it is difficult to
say that a miscarriage of justice occurred. See Olano, 507 U.S. at 736.
       Based on these considerations, we conclude that the district court’s error
does not rise to the level of a “grave injustice,” see Escalante-Reyes, 689 F.3d at
423, nor does it seriously affect the fairness, integrity, or public reputation of
judicial proceedings, see Puckett, 556 U.S. at 135. Accordingly, Flores has
failed to demonstrate that the error satisfies the fourth prong of plain error
review. See id.
                                              III.
       For the foregoing reasons, the sentence of Defendant-Appellant Jose
Ricardo Flores is AFFIRMED.




       2 The district court sentenced Flores to 10 months’ imprisonment in the revocation matter,

when the minimum sentence under the Guidelines was 8 months’ imprisonment.
                                               5
