     Case: 11-41275     Document: 00511907405         Page: 1     Date Filed: 07/02/2012




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

                                                                            FILED
                                                                            July 2, 2012
                                     No. 11-41275
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JORGE GALVAN-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-704-1


Before JONES, Chief Judge, and BENAVIDES and GRAVES, Circuit Judges.
PER CURIAM:*
        Jorge Ricardo Galvan-Hernandez (Galvan) appeals the sentence imposed
by the district court following his guilty plea convictions of being illegally
present in the United States following removal and fraud in connection with an
access device. In addition to his federal convictions, Galvan was convicted in
Texas state court of one count of credit card abuse. A portion of his two-year
state jail sentence was undischarged when the district court imposed sentence.
Galvan argues that the district court erred by not applying U.S.S.G. § 5G1.3(b).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41275    Document: 00511907405      Page: 2   Date Filed: 07/02/2012

                                  No. 11-41275

      As Galvan concedes, his failure to properly preserve for appeal the issue
of the application of § 5G1.3(b) results in plain error review. See United States
v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995); United States v. Rodriguez, 15 F.3d
408, 414 (5th Cir. 1994). To establish plain error, Galvan 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 makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      The sentencing of a defendant subject to an undischarged term of
imprisonment is addressed by § 5G1.3. In a case falling under § 5G1.3(b), the
district court “shall adjust the sentence for any period of imprisonment already
served on the undischarged term of imprisonment if the court determines that
such period of imprisonment will not be credited to the federal sentence by the
Bureau of Prisons.” § 5G1.3(b)(1). Also, “the sentence for the instant offense
shall be imposed to run concurrently to the remainder of the undischarged term
of imprisonment.” § 5G1.3(b)(2).
      Section 5G1.3(b) applies when “a term of imprisonment resulted from
another offense that is relevant conduct to the instant offense of conviction
under . . . § 1B1.3 (Relevant Conduct) and that was the basis for an increase in
the offense level for the instant offense.” § 5G1.3(b). It is applicable where the
relevant conduct from another offense “has resulted in an increase in the
Chapter Two or Three offense level for the instant offense.” § 5G1.3, comment
(n.2(A)). An incremental loss that does not affect the defendant’s offense level
cannot be regarded as forming the “basis” for an increase in that level under
§ 5G1.3(b). United States v. Carrasco–de–Jesús, 589 F.3d 22, 27 (1st Cir. 2009).
      The record establishes that Galvan’s state conviction for credit card abuse
stems from his unauthorized use of a MasterCard credit card that belonged to
Francisco Bulnes. That state conviction was relevant conduct with respect to his
federal offense of fraud in connection with an access device. However, because

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   Case: 11-41275    Document: 00511907405      Page: 3   Date Filed: 07/02/2012

                                  No. 11-41275

Galvan did not raise the applicability of § 5G1.3(b) in the district court, the
record is not developed sufficiently to establish whether the relevant conduct
from the Texas state conviction “was the basis for an increase in the offense level
for the instant offense.” § 5G1.3(b). “Questions of fact capable of resolution by
the district court upon proper objection at sentencing can never constitute plain
error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Galvan has failed
to make the requisite showing under the plain error standard.
      AFFIRMED.




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