     Case: 17-50939      Document: 00514824619         Page: 1    Date Filed: 02/06/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 17-50939
                                                                            Fifth Circuit


                                  Summary Calendar                        FILED
                                                                    February 6, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

                                                 Plaintiff-Appellee

v.

MARTIN PAUL DE-LA-ROSA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:16-CR-317-5


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Martin Paul De-La-Rosa appeals the 235-month, within-guidelines
sentence imposed following his guilty plea conviction of conspiracy to possess
with intent to distribute a mixture or substance containing methamphetamine.
He argues that the district court erred in failing to apply the purity rate to the
drug quantity attributed to him at the sentencing hearing and in assessing a




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50939     Document: 00514824619      Page: 2   Date Filed: 02/06/2019


                                  No. 17-50939

criminal history point for a prior sentence that was imposed outside the
applicable time period of U.S.S.G. § 4A1.2(e).
      As De-La-Rosa correctly concedes, our review is for plain error. To show
plain error, he 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 makes such a showing, we have the discretion to correct the error
but should do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      At a minimum, De-La-Rosa has not satisfied the third prong of the plain
error test with regard to either alleged error. As to whether his substantial
rights were affected, his base offense level and guidelines range remain the
same after the 96.5 per cent purity rate is applied to the 88 ounces of
methamphetamine attributed to De-La-Rosa. Likewise, his criminal history
category and guidelines range remain the same after subtraction of the
contested criminal history point. De-La-Rosa thus fails to demonstrate “a
reasonable probability that, but for the district court’s error[s], [he] would have
received a lower sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir.
2010).
      AFFIRMED.




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