     Case: 16-41231      Document: 00514099089         Page: 1    Date Filed: 08/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-41231
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 2, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

CARLOS U. LOBO,

                                                 Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-690-1




Before HIGGINBOTHAM, SMITH, and COSTA, Circuit Judges.
PER CURIAM: *

       Carlos Lobo appeals his 40-month, below-guidelines sentence for ille-
gally reentering the United States. See 8 U.S.C. § 1326(a) and (b)(2). He con-
tends that the district court erred in calculating his sentence by refusing to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41231

apply the pending, but not yet effective, 2016 guidelines—which would have
resulted in a lower advisory range—because of a “fixed” policy that did not take
his individual circumstances into account. He further asserts that the court
erroneously applied a 16-level “crime of violence” (“COV”) enhancement, under
former U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his conviction of assault with
intent to commit rape under California Penal Code § 220(a). He reasons that
that offense constituted neither a “COV” nor a “felony” within the meaning of
former Section 2L1.2.

      We review for plain error the assertion regarding the application of a
“fixed policy” regarding pending amendments. See Puckett v. United States,
556 U.S. 129, 134 (2009); United States v. Warren, 720 F.3d 321, 332 (5th Cir.
2013). The district court calculated Lobo’s sentence according to the version of
the guidelines then in effect, and Lobo does not allege that the court failed to
appreciate its discretion to vary based on the pending guidelines. See United
States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007); United States v.
Clay, 787 F.3d 328, 332 (5th Cir. 2015). Although courts are required to make
an individualized assessment, see United States v. Alvarado, 691 F.3d 592, 598
(5th Cir. 2012), they are free to disagree categorically with the guidelines based
on policy considerations, see Spears v. United States, 555 U.S. 261, 265−66
(2009).

      We need not reach whether the court committed error that was clear or
obvious, because Lobo cannot, in any event, satisfy the third and fourth plain-
error prongs. See United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002).
The court conducted an individualized assessment of Lobo’s circumstances,
including his extensive criminal history, his repeated illegal reentries, his long-
time residence in the United States, and his cultural assimilation. Given that,
nothing in the record suggests that the court would have granted a variance


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                                  No. 16-41231

based on the 2016 guidelines. See United States v. Hebron, 684 F.3d 554, 559
(5th Cir. 2012). Nor does the error call for the exercise of our corrective
discretion under the fourth prong, because “there is sufficient evidence in the
record showing that the incorrect sentence was nevertheless fair.” United
States v. Brown, 826 F.3d 835, 841 (5th Cir. 2016).

      We review de novo Lobo’s assertion that the district court erroneously
enhanced his sentence under former Section 2L1.2(b)(1)(A)(ii) based on his
California conviction. See United States v. Calderon-Pena, 383 F.3d 254, 256
(5th Cir. 2004) (en banc) (per curiam). As Lobo concedes, his theory that a
violation of Section 220(a) does not constitute a COV for purposes of the guide-
lines is foreclosed by United States v. Rojas-Gutierrez, 510 F.3d 545, 547−50
(5th Cir. 2007). Lobo further avers that his assault conviction was not a
“felony” because his six-year state sentence was suspended in lieu of five years
of probation, resulting in only one year of custody. See U.S.S.G. § 2L1.2,
comment. (n.2) (2015). Any violation of Section 220(a), however, “exposes a
defendant to a sentence of imprisonment” of at least two years, United States
v. Rivera-Perez, 322 F.3d 350, 352 (5th Cir. 2003); see CAL. PENAL CODE
§ 220(a), and is therefore “punishable for a term exceeding one year,” § 2L1.2,
comment. (n.2). Lobo’s conviction was thus a “felony” supporting an enhance-
ment under former § 2L1.2(b)(1)(A)(ii). See Calderon-Pena, 383 F.3d at 256.

      Although Lobo asserts that the suspension of a majority of his state sen-
tence in lieu of probation alters the above analysis, that argument is without
merit, because the statutory provision he relies on—defining the term “sen-
tence imposed” to exclude any suspended portion of that sentence—applies to
enhancements based on a prior drug-trafficking offense, not a prior COV. See
§ 2L1.2(b)(1)(A)(i), (ii) & comment. (n.2) (2015).

      AFFIRMED.


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