     Case: 09-51158 Document: 00511316235 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 09-51158
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RENE PACHECO-GARCIA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:09-CR-814-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Rene Pacheco-Garcia pleaded guilty without a plea agreement to illegal
reentry after deportation and was sentenced to 57 months of imprisonment and
three years of supervised release. He appeals his sentence, arguing that the
district court plainly erred by counting three prior sentences separately for
criminal history purposes when the sentences were imposed on the same day.
He contends that under U.S.S.G. § 4A1.2(a)(2), his three prior convictions in
which the sentences were all imposed on December 18, 2000, should have been

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51158 Document: 00511316235 Page: 2 Date Filed: 12/08/2010

                                   No. 09-51158

counted as a single sentence because there was no evidence that the offenses
were separated by intervening arrests. He acknowledges that he did not object
in the district court. The Government argues that this case presents a question
of fact capable of resolution by the district court upon proper objection at
sentencing and can never constitute plain error.
      Because Pacheco-Garcia did not object in the district court, review is for
plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir.), cert. denied, 130 S. Ct. 192 (2009). He must therefore show a forfeited
error that is clear or obvious and affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Even if Pacheco-Garcia makes such a
showing, this court has the discretion to correct the error but only if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted).
      Refining the plain error analysis further is the issue whether this case
presents a factual or a legal issue. “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). However, an
alleged misapplication of the guidelines is a legal issue subject to plain error
review. See United States v. Surasky, 974 F.2d 19, 21 & n.5 (5th Cir. 1992).
      Pacheco-Garcia argues that because the Presentence report (PSR) showed
that he was sentenced for three prior offenses on the same day and showed no
intervening arrests, based on the facts as set out in the PSR, the district court
misapplied the guidelines to compute his criminal history score. He also argues
that it was the Government’s burden, not his, to prove the facts relevant to
sentencing. He contends that the PSR established “as a fact” that there were no
intervening arrests and that the district court plainly erred in counting these
three sentences separately. The Government disagrees with this argument.
      Rather than determine whether Pacheco-Garcia has shown any error at
all in respect to whether the existence of intervening arrests raises a legal or

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                                   No. 09-51158

factual issue, much less whether this was a clear or obvious error by the district
court, we move to the plain error analysis. To show plain error, Pacheco-Garcia
must establish that his substantial rights were affected. To satisfy this burden,
Pacheco-Garcia must “show a reasonable probability that, but for the district
court’s misapplication of the Guidelines, he would have received a lesser
sentence.” United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).
      Pacheco-Garcia argues that the district court’s plain error affected his
substantial rights. He contends that the removal of the four erroneous criminal
history points would give him a criminal history category of III and reduce his
guideline range from 57 to 71 months to 46 to 57 months. He asserts that there
are strong indications in the record that the district court would have imposed
a sentence at the bottom of the correctly calculated range. He states that the
district court was aware of the circumstances that mitigated his offense,
including the age of his prior convictions and the fact that he had stayed outside
the United States since 2002. The Government argues that, assuming there was
an error that was plain, because Pacheco-Garcia’s sentence of 57 months falls
within both the correct and allegedly incorrect guideline ranges, Pacheco-Garcia
has failed to demonstrate a reasonable probability that he would have received
a lesser sentence.
      We have “shown considerable reluctance in finding a reasonable
probability that the district court would have settled on a lower sentence” when
the defendant’s sentence falls within both the correct and incorrect guideline
ranges. United States v. Blocker, 612 F.3d 413, 416 (5th Cir.), petition for cert.
filed (Oct. 18, 2010) (No. 10-7090) (internal quotation marks omitted). A
one-month overlap between the correct and incorrect guideline ranges
demonstrates “only a possibility of a lesser sentence but for the error, not the
requisite probability.” United States v. Cruz-Meza, 310 F. App’x 634, 637 (5th
Cir.), cert. denied, 130 S. Ct. 86 (2009).



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                                 No. 09-51158

      Pacheco-Garcia was sentenced to 57 months at the bottom of a range of 57
to 71 months. The alleged correct guideline range would be 46 to 57 months, an
overlap of one month. Thus, his sentence falls within both ranges. Pacheco-
Garcia requested that the district court reduce his sentence based on
considerations that he had already paid for his crimes, that he remained outside
the U.S. since 2002, and that he came back because his mother had a brain
tumor. The district court considered his arguments and declined to reduce his
sentence. Pacheco-Garcia has not demonstrated a “reasonable probability that,
but for the district court’s misapplication of the Guidelines, he would have
received a lesser sentence.” See Villegas, 404 F.3d at 364.
                                                                  AFFIRMED.




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