     Case: 12-40478       Document: 00512124029         Page: 1     Date Filed: 01/25/2013




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

                                                                            FILED
                                                                         January 25, 2013
                                     No. 12-40478
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESUS ALONSO SALINAS-GARZA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-872-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jesus Alonso Salinas-Garza (Salinas) appeals the 77-month sentence he
received following his guilty plea conviction for being an alien found illegally in
the United States after having been previously deported, in violation of 8 U.S.C.
§ 1326. For the first time on appeal, Salinas argues that the district court
reversibly erred by assessing three criminal history points for each of his two
aggravated assault convictions for which the sentences were imposed on the
same day when the Presentence Report showed that he was not arrested for the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40478     Document: 00512124029     Page: 2   Date Filed: 01/25/2013

                                  No. 12-40478

first offense after he committed the second. We review this argument for plain
error. See United States v. John, 597 F.3d 263, 282 (5th Cir. 2010).
      As the Government concedes, the district court committed clear or obvious
error in counting the prior convictions separately. See United States v. Espinoza,
677 F.3d 730, 735-37 (5th Cir. 2012). Had the convictions been correctly scored,
Salinas would have been assigned a lower criminal history category and a lower
guidelines sentencing range. Nevertheless, he is not entitled to relief.
      “In the sentencing context, . . . an appellant can show an impact on
substantial rights—and therefore a basis for reversal on plain error
review—where the appellant can show a reasonable probability that, but for the
district court’s error, the appellant would have received a lower sentence.”
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). The district court
sentenced Salinas using a guidelines range of 77 to 90 months in prison.
Without the incorrectly assessed criminal history points, his correct range would
have been 70 to 87 months. These two ranges overlap, and the 77-month
sentence imposed is “squarely in the middle of his corrected” sentencing range.
See United States v. Jasso, 587 F.3d 706, 713 (5th Cir. 2009).
      When a disputed sentence falls within both the correct and incorrect
guidelines ranges, this court has “shown considerable reluctance in finding a
reasonable probability that the district court would have settled on a lower
sentence” and “do[es] not assume, in the absence of additional evidence, that the
sentence affects a defendant’s substantial rights.” United States v. Blocker, 612
F.3d 413, 416 (5th Cir. 2010), cert. denied, 131 S. Ct. 623 (2010). Salinas points
to no such evidence, and our review of the record reveals none. His raises only
the possibility of a different sentence absent the error; he does not show the
probability that is required to meet the plain error standard. See id.; see also
Davis, 602 F.3d at 647.
      The judgment of the district court is AFFIRMED.



                                        2
