     Case: 14-20537      Document: 00513384991         Page: 1    Date Filed: 02/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20537                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 17, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

JUAN LORENZO-ZEPETA, also known as Juan Lorenzo Zepeta, also known
as Juan J. Lorenzo, also known as Juan I. Zepeta, also known as Juan
Gutierez Zepeta, also known as Juan Valdez Zepeta, also known as Juventino
Zepeta,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-213-1


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Juan Lorenzo-Zepeta appeals the 48-month 1 sentence he received for
illegal reentry after deportation. He maintains that the district court plainly




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1The district court granted defense counsel’s request to decrease the sentence to 47
months to account for the time Lorenzo-Zepeta was in immigration custody.
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                                       No. 14-20537
erred by failing to explain its finding that there was sufficient information in
the record to sentence him without a presentence report (“PSR”). We AFFIRM.
                                               I.
       On August 18, 2014, Lorenzo-Zepeta pleaded guilty to being unlawfully
in the United States after having been deported and convicted of a felony in
violation of 8 U.S.C. § 1326(a) and § 1326(b)(1). Immediately after the district
court received the plea, and without ordering the preparation of a PSR, it asked
Lorenzo-Zepeta if he would like “to go ahead with the sentencing,” to which
Lorenzo-Zepeta’s attorney replied, “[w]e wouldn’t object, Your Honor.” 2
       In response to the court’s inquiry, the Government recommended that
Lorenzo-Zepeta receive a sentence within the Guidelines range, but was unable
to state what that Guidelines range would be. The court then stated that it
was going to rely on a judgment in Lorenzo-Zepeta’s most recent illegal reentry
case, in which he received a 30-month sentence. When the court asked the
defendant for a recommendation on sentencing, Lorenzo-Zepeta’s attorney
stated that she believed 30 months was “the high end of the Guidelines.”
Defense counsel then requested a sentence of 12 months and a day. When
asked if he had anything else to say before sentencing, Lorenzo-Zepeta
apologized for returning and stated that he planned not to do so again. The
court then sentenced Lorenzo-Zepeta to 48 months of imprisonment and a 3-




       2 The district court had the following information available to it at sentencing: (1) the
fact that in March 2012, Lorenzo-Zepeta had been sentenced to 30 months imprisonment for
illegal reentry after a felony conviction; (2) a sentence data sheet; and (3) a proffer. The
sentence data sheet stated that Lorenzo-Zepeta was a Mexican citizen who was pleading
guilty to illegal reentry after deportation and following a felony conviction. It listed the
elements of the offense and the maximum penalty—10 years imprisonment, up to 3 years
supervised release, a fine, and a special assessment. The proffer contained the facts that the
Government would prove if the case proceeded to trial, such as Lorenzo-Zepeta’s previous
convictions and deportations.

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                                        No. 14-20537
year term of supervised released, noting that Lorenzo-Zepeta’s conduct was
“getting worse, not better.” 3 Lorenzo-Zepeta appealed.
                                               II.
       The district court sentenced Lorenzo-Zepeta without a PSR.                        Under
Federal Rule of Criminal Procedure 32, “[t]he probation officer must conduct a
presentence investigation and submit a report to the court before it imposes
sentence unless . . . the court finds that the information in the record enables
it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553,
and the court explains its finding on the record.”                       FED. R. CRIM. P.
32(c)(1)(A)(ii); see also U.S. SENTENCING GUIDELINES MANUAL § 6A1.1(a)(2)
(U.S. SENTENCING COMM’N 2013). 4 The text of Rule 32(c)(1)(A)(ii) makes clear
that there are two requirements that must be met before a defendant can be
sentenced without a PSR: (1) there must be information in the record that
enables the district court to meaningfully exercise its sentencing authority,
and (2) the court must explain on the record its finding that there is sufficient
information in the record to sentence the defendant.                      FED. R. CRIM. P.
32(c)(1)(A)(ii); see also United States v. Aguirre-Alva, 459 F. App’x 395, 396 (5th
Cir. 2012). 5
       Lorenzo-Zepeta’s appeal is based solely on the second requirement of
Rule 32(c)(1)(A)(ii). He affirmatively stated at oral argument that he is not
appealing the failure to obtain a PSR itself. He maintains that the district


       3 In the written statement of reasons, the district court checked the box indicating
that the record established there was no need for a PSR under Federal Rule of Criminal
Procedure 32.
       4 At the time of Lorenzo-Zepeta’s sentencing, the 2013 Guidelines were in effect. See
United States v. Myers, 772 F.3d 213, 218 (5th Cir. 2014) (noting the general rule that the
district court “must apply the version of the sentencing guidelines effective at the time of
sentencing” (quoting United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007))).
       5Although Aguirre-Alva is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).
                                               3
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                                 No. 14-20537
court did not explain its finding that there was sufficient information in the
record to sentence him, and he appeals only this asserted failure.
                                      III.
      A good argument can be made that Lorenzo-Zepeta waived the lack of
explanation by affirmatively stating that he would not object to proceeding to
sentencing immediately. While it is true that a defendant cannot waive the
preparation of a PSR, U.S. SENTENCING GUIDELINES MANUAL § 6A1.1(b),
Lorenzo-Zepeta does not appeal the lack of a PSR. The Guidelines do not
suggest that a party cannot waive the district court’s “sufficient information”
explanation. We need not decide the waiver issue because we conclude his
argument fails even under the standard of error he urges: plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009). Plain error review involves
four prongs:
            (1) “there must be an error or defect—some sort of
            [d]eviation from a legal rule—that has not been
            intentionally relinquished or abandoned”; (2) “the
            legal error must be clear or obvious, rather than
            subject to reasonable dispute”; (3) “the error must have
            affected the appellant’s substantial rights”; and (4) “if
            the above three prongs are satisfied, the court of
            appeals has the discretion to remedy the error—
            discretion which ought to be exercised only if the error
            seriously affect[s] the fairness, integrity or public
            reputation of judicial proceedings.”
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(quoting Puckett, 556 U.S. at 135).
      In assessing plain error here, we note a few things. To this day, neither
party has affirmatively demonstrated what the Guidelines range would be in
this case, so we cannot assess the degree of deviation from such a range. Both
sides have offered only “guesses” as to what the range would have been. Yet
Lorenzo-Zepeta does not appeal the failure to properly calculate or calculate at

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                                  No. 14-20537
all the Guidelines range. Additionally, the record is clear that the district court
made a careful assessment of Lorenzo-Zepeta’s history and characteristics, and
he has not pointed to any information the district court did not have that, if
known, would support a lower sentence. Thus, we are not at all persuaded that
Lorenzo-Zepeta has shown an effect on his substantial rights, even if we
assume arguendo an error that was plain. We need not decide this “third
prong,” because we conclude that Lorenzo-Zepeta clearly fails to satisfy the
“stringent requirement[]” of the fourth prong. Id. at 423. The fourth prong “is
dependent upon the degree of the error and the particular facts of the case.”
United States v. John, 597 F.3d 263, 288 (5th Cir. 2010). Accordingly, the
fourth prong is not automatically satisfied where the other three prongs are
met. Escalante-Reyes, 689 F.3d at 425.
      On the facts of this case, the lack of an explanation did not seriously
affect the fairness, integrity, or public reputation of judicial proceedings.
Lorenzo-Zepeta maintains that the fourth prong is satisfied because he
received a sentence that was above the appropriate Guidelines range. But he
has utterly failed to show that his sentence is, indeed, above the Guidelines
range and, if it is, by how much. More importantly, even assuming his sentence
is above the range, he has not shown that the error he appealed caused the
sentence to be above the Guidelines range. The sentence he received is well
below the statutory maximum of 10 years.
      Further, as noted above, his attorney did not request any “sufficient
information finding” from the district court, instead expressly stating that he
would not object to the district court proceeding. See United States v. Carrillo-
Gonzales, No. 15-50156, 2015 WL 9287511, at *2 (5th Cir. Dec. 21, 2015)
(determining that the admission of a laboratory report was not reversible
under the fourth prong of plain error review where counsel stated he had no
objection to the report’s admission). Finally, given that we have previously
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affirmed cases in which the explanation given was not lengthy, see, e.g., United
States v. Cantu, 786 F.2d 712, 713 n.1 (5th Cir. 1986), we conclude that this is
not a circumstance in which we must exercise our discretion to correct the
error. See Escalante-Reyes, 689 F.3d at 425. Accordingly, we AFFIRM. 6




       6Because we affirm the district court’s sentence, we need not reach Lorenzo-Zepeta’s
second issue on appeal—whether on remand the case should be assigned to a new judge.
                                            6
