     Case: 15-40125      Document: 00513183553         Page: 1    Date Filed: 09/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40125
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 8, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

VICTOR MANUEL LONGORIA-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-709-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Victor Manuel Longoria-Hernandez pled guilty to being an alien found
unlawfully in the United States after deportation. Based on a total offense
level of ten and a criminal history category IV, his advisory guidelines range
of imprisonment was 15 to 21 months. The district court sentenced him to 21
months of imprisonment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40125     Document: 00513183553      Page: 2   Date Filed: 09/08/2015


                                  No. 15-40125

      On appeal, Longoria-Hernandez argues that the district court erred in
assessing a criminal history point for his 2012 public intoxication conviction.
He concedes that, because he failed to object to the criminal history point in
the district court, this issue is reviewed only for plain error. To establish plain
error, Longoria-Hernandez must show a forfeited error that is clear or obvious
and that affected his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). The Government concedes that the addition of the criminal history
point was clearly erroneous.
      Longoria-Hernandez’s pre-sentence report listed prior offenses that
should have been totaled as eight criminal history points. The report, though,
stated there were only seven.       Seven criminal history points placed the
defendant in criminal history category IV. Longoria-Hernandez recognizes in
his reply brief that there were actually eight criminal history points. The
erroneous addition of a point for his 2012 public intoxication does not affect his
criminal history category because, despite that error, he still properly has
seven points.
      A sentencing error affects a defendant’s substantial rights where there
is a reasonable probability that the defendant would have received a more
lenient sentence absent the error. United States v. Mudekunye, 646 F.3d 281,
289 (5th Cir. 2011).    Longoria-Hernandez has not shown that reasonable
probability. AFFIRMED.




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