     Case: 16-41725         Document: 00514283515         Page: 1       Date Filed: 12/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals

                                      No. 16-41725
                                                                                         Fifth Circuit

                                                                                       FILED
                                    Summary Calendar                            December 21, 2017
                                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                                              Clerk


                Plaintiff - Appellee

v.

JOSE OSCAR ORTIZ-CASTRO, also known as Jose Oscar Castro Ortiz, also
known as Oscar Ortiz, also known as Miguel Aguilar, also known as Sponto
Moniker, also known as Oscar Jose Luna,

                Defendant - Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 2:16-CR-689-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Oscar Ortiz-Castro, whose release date is March 2, 2018, 1 appeals
his 22-month sentence of imprisonment following a conviction upon a guilty
plea to illegal reentry. He contends that the 10-level enhancement he received
should have been a 4-level enhancement, citing United States v. Franco-



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   Ortiz-Castro did not receive a term of supervised release.
     Case: 16-41725       Document: 00514283515         Page: 2     Date Filed: 12/21/2017



                                       No. 16-41725
Galvan, 864 F.3d 338 (5th Cir. 2017) and United States v. Bustillos-Peña, 612
F.3d 863 (5th Cir. 2010). After factoring in other considerations, the allegedly
correct guidelines range would be 8-14 months instead of the range actually
applied, which was 21-27 months.
       Ortiz-Castro admits that he failed to raise in the district court the issue
he now raises on appeal such that review is for plain error which involves four
prongs. United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en
banc). The fourth prong, which is not automatic, provides for this court to
determine whether to exercise its discretion to recognize the error. Id. at 425.
There is no precise formula for the exercise of this discretion, 2 but we have held
that conduct demonstrating recidivism, among other considerations, supports
denial of discretionary relief. United States v. Davis, 602 F.3d 643, 650-52 (5th
Cir. 2010).
       Accordingly, we pretermit consideration of the first three prongs of plain
error review because we conclude that Ortiz-Castro fails the fourth prong.
Ortiz-Castro is a former gang member, and, more importantly, as the district
court noted, committed this instance of illegal reentry “basically less than 60
days” after his prior deportation, evidencing recidivistic conduct. Reviewing
that fact together with all the specifics of Ortiz-Castro’s history and crimes, we
decline to exercise our discretion to grant relief.
       AFFIRMED.




       2   The Supreme Court has granted certiorari to determine whether the exercise of
discretion is limited to cases that “shock the conscience.” Rosales-Mireles v. United States,
2017 WL 2505758 (Sept. 28, 2017) (No. 16-9493). We need not address the parameters of
that standard because the result is the same here even if we apply the less onerous test set
forth in the en banc majority opinion in United States v. Escalante-Reyes, 689 F.3d at 425-26.
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