     Case: 19-50268      Document: 00515214754         Page: 1    Date Filed: 11/26/2019




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

                                    No. 19-50268
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                    November 26, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

EDUARDO QUINTANA-SOTELO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:17-CR-885-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Eduardo Quintana-Sotelo appeals the sentence imposed by the district
court following its revocation of his term of supervised release. For the reasons
set forth below, Quintana-Sotelo has not demonstrated that the district court
committed plain error in imposing his new sentence. We therefore affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50268

                                               I.
      Quintana-Sotelo was sentenced to five months of imprisonment to be
followed by two years of supervised release after pleading guilty to importing
50 kilograms or more of marijuana. As a condition of supervised release, he
was ordered to serve community confinement at Dismas Charities (“Dismas”)
in El Paso, Texas for five months. His period of supervised release commenced
on October 10, 2017. On March 1, 2018, after Quintana-Sotelo had spent
nearly five months at Dismas, the district court modified the conditions of his
supervision to require him to reside at Dismas “for a period of up to one
hundred and eighty (180) days.” Per the modification order, Quintana-Sotelo
was to abide by Dismas’s rules and was not allowed to terminate his stay at
Dismas or separate from the facility without authorization from his probation
officer or Dismas’s director. The reason for the modification was to allow
Quintana-Sotelo time to save sufficient funds to secure housing.
      On March 13, 2019, the district court revoked Quintana-Sotelo’s
supervised release, finding that he had violated the conditions of supervision.
Specifically, Quintana-Sotelo had absconded from Dismas on March 29, 2018
after being administered a breathalyzer and testing positive for alcohol twice
and had thereafter failed to report to his probation officer within 72 hours. In
his revocation report, the probation officer noted that the maximum statutory
term of imprisonment was two years, pursuant to 18 U.S.C. § 3583(e)(3) and
that, pursuant to U.S.S.G. § 7B1.4(a), the recommended range of imprisonment
was three to nine months.            The revocation report further indicated that
Quintana-Sotelo had 170 days of unserved community confinement that should
be ordered to be served in addition to the revocation sanction and could be
converted to an equivalent period of imprisonment under U.S.S.G. § 7B1.3(d). 1


      1   U.S.S.G. § 7B1.3(d) provides:


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                                     No. 19-50268

      During Quintana-Sotelo’s revocation hearing, the court acknowledged
the applicable Guidelines range of imprisonment. The court further noted that
Quintano-Sotelo had not served 170 days of the previously ordered 180 days at
Dismas. At the end of the revocation hearing, the court ordered that Quintano-
Sotelo was to be “committed to the custody of the United States Bureau of
Prisons to be imprisoned for a term of six months plus 170 days of unserved
community confinement,” with “no supervised release to follow.” Similarly, in
its written “order revoking supervised release,” the district court ordered
Quintana-Sotelo to be “committed to the custody of the Bureau of Prisons for a
period of six (6) months plus one-hundred seventy (170) days of unserved
community confinement” with “[n]o supervised release to follow.”
                                            II.
       On appeal, Quintana-Sotelo challenges the inclusion of “170 days of
unserved community confinement” in his sentence. He first argues that his
sentence is ambiguous in that it is not clear whether the district court intended
the 170-day term to be converted to a term of imprisonment or to be served in
community confinement. 2 According to Quintana-Sotelo, if the district court
wanted him to serve the 170 days in prison, as opposed to in community
confinement, it should have unambiguously so stated. In addition, Quintana-
Sotelo contends that because his modified condition of supervised release


       Any restitution, fine, community confinement, home detention, or intermittent
       confinement previously imposed in connection with the sentence for which
       revocation is ordered that remains unpaid or unserved at the time of revocation
       shall be ordered to be paid or served in addition to the sanction determined
       under § 7B1.4 (Term of Imprisonment), and any such unserved period of
       community confinement, home detention, or intermittent confinement may be
       converted to an equivalent period of imprisonment.
       2 Quintana-Sotelo does not challenge the district court’s determination of the

applicable Sentencing Guidelines range of imprisonment or argue that his sentence exceeds
the statutory maximum. Nor does he argue that the district court was not allowed to convert
any previously imposed, but unserved, community confinement time to a term of
imprisonment.


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                                   No. 19-50268

required him to stay at Dismas for “up to” 180 days, unless he was permitted
to depart earlier by the facility director or his probation officer, his unserved
term was “indeterminate.” Therefore, he states, it could not be concluded that
he had failed to serve 170 days.
                                        III.
      Quintana-Sotelo did not object to the district court’s sentence on either
of the grounds he now presents on appeal, depriving the district court of the
opportunity to consider the potential issues and, if necessary, correct itself. See
United States v. Rosenthal, 805 F.3d 523, 528 (5th Cir. 2015). Accordingly, we
review for plain error. See id. See also United States v. Barber, 865 F.3d 837,
839 (5th Cir. 2017) (applying plain error review to an unpreserved argument
that a special condition of supervised release was impermissibly ambiguous).
Quintana-Sotelo must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the error if it affects the
fairness, integrity, or public reputation of the judicial proceedings. Id.
      Quintana-Sotelo is unable to make such a showing. Although the district
court’s intentions may have been clearer if it had explicitly stated that it was
converting the uncompleted stay at Dismas to a prison term, this court has
“been loath to demand ‘magic words’ or ‘robotic incantations’ from district
judges.” United States v. Vega-Garcia, 893 F.3d 326, 328 (5th Cir. 2018), cert.
denied, 139 S. Ct. 441 (2018). A review of the probation officer’s revocation
report, combined with the statements of the district court and defense counsel
at the revocation hearing, reflect that the parties were aware that the court
intended to impose an additional 170-day term of incarceration in accordance
with U.S.S.G. § 7B1.3(d).




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                                 No. 19-50268

      As for Quintana-Sotelo’s assertion that his previously ordered period of
community confinement and, therefore, his new sentence are indeterminate,
to the extent that he is challenging a factual finding, “[q]uestions of fact
capable of resolution by the district court upon proper objection at sentencing
can never constitute plain error.” United States v. Claiborne, 676 F.3d 434,
438 (5th Cir. 2012) (internal quotation marks and citation omitted). To the
extent that he is contending that the district court committed legal error, we
have not addressed the question whether a district court may convert an
arguably “indeterminate” period of community confinement to a “determinate”
number of days of imprisonment for purposes of § 7B1.3(d), or in other contexts,
and no such authority has been identified or found in other circuits.
Accordingly, Quintana-Sotelo has shown no clear or obvious error in the
district court’s sentence. See Puckett, 556 U.S. at 135; United States v. Fields,
777 F.3d 799, 805 (5th Cir. 2015); United States v. Miller, 665 F.3d 114, 136
(5th Cir. 2011).
                                      IV.
      For the reasons stated above, the judgment of the district court is
AFFIRMED.




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