     Case: 15-41605      Document: 00513583543         Page: 1    Date Filed: 07/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41605
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             July 8, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

PANCHITA HERNANDEZ-YBARRA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-379-2


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Panchita Hernandez-Ybarra appeals the sentence imposed following her
guilty plea conviction for conspiracy to transport unlawful aliens within the
United States by motor vehicle and two counts of transporting unlawful aliens
within the United States by motor vehicle. For the first time on appeal,
Hernandez-Ybarra argues that the district court plainly erred at sentencing by
relying upon testimony given at her co-defendant’s trial without first giving


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41605     Document: 00513583543       Page: 2   Date Filed: 07/08/2016


                                   No. 15-41605

her notice. She asserts that the error was clear or obvious because this court
has long held that defendants are entitled to notice and an opportunity to
respond before a sentencing court can rely upon evidence from other
proceedings.     According to Hernandez-Ybarra, the error affected her
substantial rights because the district court had not decided to overrule her
objection to the enhancement for creating a substantial risk of death or serious
bodily injury until the evidence from her co-defendant’s trial was presented
and the overruling of her objection substantially raised her guidelines sentence
range.
      Hernandez-Ybarra did not object to the consideration of evidence from
her co-defendant’s trial in the district court.      Accordingly, as Hernandez-
Ybarra acknowledges, we review for plain error only. See United States v.
Cedillo-Narvaez, 761 F.3d 397, 402 (5th Cir.), cert denied 135 S. Ct. 764 (2014).
To show plain error, Hernandez-Ybarra must show a forfeited error that is
clear or obvious and that affects her substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If she makes such a showing, we have the
discretion to correct the error, but should do so only if the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See id.
      In determining a sentence, a district court has wide discretion to consider
all relevant matters. See United States v. Weatherton, 567 F.3d 149, 153-54
(5th Cir. 2009). However, a district court must notify the defendant and her
attorney of its reliance on facts or factors not contained in the presentence
report (PSR) so that the defendant has an opportunity to challenge the
accuracy of the facts on which the court relies. See United States v. Townsend,
55 F.3d 168, 172 (5th Cir. 1995). Nevertheless, “[i]f the defendant has actual
knowledge of the facts on which the district court bases an enhancement or a
denial of a reduction, the Sentencing Guidelines themselves provide notice of



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                                 No. 15-41605

the grounds relevant to the proceeding sufficient to satisfy the requirements of
[Federal Rule of Criminal Procedure 32] and U.S.S.G. § 6A1.3.” United States
v. Garcia, 797 F.3d 320, 323 (5th Cir. 2015) (internal quotation marks and
citation omitted).
      The district court heard and considered testimony given at the trial of
Hernandez-Ybarra’s co-defendant, and there is no indication in the record that
Hernandez-Ybarra received prior notice. However, the testimony from the co-
defendant’s trial concerned the space in which the transported aliens were
traveling, and this information was also contained, in detail, in the factual
basis and the PSR. Indeed, at sentencing, there was no dispute regarding the
area where the transported aliens were traveling; Hernandez-Ybarra instead
argued that traveling in that area did not create a substantial risk of death or
serious bodily injury. As Hernandez-Ybarra “ha[d] actual knowledge of the
facts on which the district court base[d] [the] enhancement,” she has not shown
that the district court committed error, plain or otherwise. Garcia, 797 F.3d
at 323 (internal quotation marks and citation omitted).
      AFFIRMED.




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