     Case: 11-40101     Document: 00511707957         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011
                                     No. 11-40101
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALONSO RODRIGUEZ-ROSALES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1559-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Alonso Rodriguez-Rosales pled guilty to one charge of illegal reentry into
the United States. The district court sentenced him to serve fifty-one months in
prison, to be followed by a three-year term of supervised release. In this appeal,
Rodriguez-Rosales charges error in two aspects of the district court’s sentencing.
        First, Rodriguez-Rosales contends that the district court erred by
concluding that his prior conviction under 21 U.S.C. § 843(b) is a drug trafficking
offense for U.S.S.G. § 2L1.2 purposes. Our review of the record shows that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40101

Rodriguez-Rosales may have waived this issue at sentencing. “Nevertheless, out
of an abundance of caution, we will review for plain error.” United States v.
Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). To meet the plain error
standard, a defendant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
          Rodriguez-Rosales’s claim fails because the error alleged is not clear or
obvious.      The relevant question here is whether Rodriguez-Rosales’s prior
conviction was for using a telecommunications device to facilitate the
commission of another crime that was itself a drug trafficking offense. See
United States v. Henao-Melo, 591 F.3d 798, 803-04 (5th Cir. 2009), cert. denied,
130 S. Ct. 2392 (2010). The Government asserts that the charging document
shows that the underlying offense was for possession of drugs with intent to
distribute, a drug trafficking offense. Rodriguez-Rosales asserts that it shows
that the underlying offense was for simple possession, which is not a drug
trafficking offense. Both parties present colorable arguments in support of their
positions, and it is unclear which should prevail. The error is not clear or
obvious. See Puckett, 129 S. Ct. at 1429.
          Next on appeal, Rodriguez-Rosales asserts that the district court plainly
erred by assessing one criminal history point for a 2001 conviction that he
committed as a juvenile, which did not result in confinement. Rodriguez-Rosales
has shown a clear or obvious error in connection with this claim: The challenged
conviction did not merit a criminal history point; without this point, Rodriguez-
Rosales would have been in a different criminal history category and would have
had a different 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

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                                 No. 11-40101

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 Rodriguez-Rosales using a guidelines range of fifty-one to sixty-three
months in prison. Without the incorrectly assessed criminal history point, his
correct range would have been forty-six to fifty-seven months. These two ranges
overlap, and the fifty-one-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) (per curiam), cert. denied, 131 S. Ct. 623 (2010).
Rodriguez-Rosales 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.




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