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

                                                                            FILED
                                                                         December 7, 2007

                                       No. 06-51235                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellant
v.

AZIZ SALEH

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:04-CR-180-5


Before GARWOOD, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Aziz Saleh (“Saleh”) pleaded guilty to two counts of a superceding
information charging him with aiding and abetting other persons in making
false statements to obtain a real estate loan in violation of 18 U.S.C. § 1010. The
district court sentenced Saleh to five years’ probation on each count, to run
concurrently. The Government appeals the district court’s sentence. For the
following reasons, we affirm.



       *
        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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-51235

                                         I
      Saleh’s presentence investigation report (“PSR”) calculated his base
offense level at 6 under U.S. SENTENCING GUIDELINES MANUAL (“USSG”) §
2B1.1(a)(2) (2005).   Because Saleh derived more than $1,000,000 in gross
receipts from the violations, his base offense level was increased two levels
pursuant to § 2B1.1(b)(13)(A). However, because the resulting offense level was
less than 24, § 2B1.1(b)(13)(D) required that it be increased to level 24. Two
levels were added pursuant to § 3B1.1(c) because it was determined that Saleh
was an organizer, leader, manager, or supervisor in the criminal activity. A
three level reduction for acceptance of responsibility resulted in a total offense
level of 23. Saleh had no criminal history points, resulting in a Category I
criminal history. With a Category I criminal history and total offense level of 23,
the Guidelines provided for a range of 46-57 months in prison. However, the
PSR noted that the maximum statutory sentence for the case was 24 months,
and that pursuant to USSG § 5G1.1(c)(1), the guideline sentence was also 24
months. See 18 U.S.C. § 1010.
      During the sentencing hearing, the district court initially informed Saleh
that the court could sentence him for up to two years under the statute. The
Government interjected that Saleh actually faced a maximum possible sentence
of up to 48 months because Saleh pleaded guilty to two counts. The district
court then corrected itself, and informed Saleh that he could serve 48 months if
sentenced on each count consecutively.
      Subsequent to the Government’s interjection regarding the statutory
maximum, in pronouncing Saleh’s sentence the district court stated:
      The Guidelines do provide for 24 months in this case. I have
      determined and reiterate that the appropriate guideline sentence for
      me to consider as one of the factors under Title 18 of the United
      States Code, Section 3553, is a total offense level of 23, with a
      criminal history category of I. . . .


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      The presentence investigation report . . . points out to me several
      factors that I should consider under 18, United States Code, Section
      3553. I place great stock in what I am advised by the probation
      department. And I further recognize that I have an obligation to
      take into account all of the factors in Title 18, United States Code,
      Section 3553 . . . .

      Therefore, when I take all of those factors into account, I have
      determined that the following sentence is adequate to provide for
      the factors expressed by Congress in Section 3553 and is tailored to
      the crime to which you have pleaded guilty and been found guilty in
      your situation with regard to the other defendants . . . .

      Although I am concerned about your involvement of your family and
      employees in this matter, I do not have any particular reason to
      believe that a severe sentence would do more to provide deterrence
      and protection of the public from future crimes by you than the fact
      that you have pleaded guilty to a felony offense and what that
      means to you and your standing in the community . . . .

      Therefore, pursuant to the Sentencing Reform Act of 1984, it is the
      judgment of this Court that you, Aziz Saleh, are hereby placed on
      probation for a term of five years . . . .

Aside from the five years probation, the district court also ordered Saleh to pay
$117,942.69 in restitution, for which he was jointly liable with other defendants,
and a special assessment of $200.
      A sentence of probation was discussed several times during the sentencing
hearing, but the Government never objected to or argued against the sentence.
After pronouncing Saleh’s sentence, the district court twice asked if there was
anything further to come before the court.        On neither occasion did the
Government object to the sentence or the district court’s Guidelines calculation.
The Government argues on appeal that the sentence should be vacated because
the district court based its sentence of five years’ probation on an incorrect
Guidelines calculation. Alternatively, the Government argues that the sentence
is unreasonable in light of the factors set forth in 18 U.S.C. § 3553.


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                                        II
      The Government urges that it has preserved these two errors for our
review. We disagree. “A party may preserve a claim of error by informing the
court))when the court ruling or order is made or sought))of the action the party
wishes the court to take, or the party’s objection to the court’s action and the
grounds for that objection.” FED. R. CRIM. P. 51(b); see United States v. Vonsteen,
950 F.2d 1086, 1090-91 (5th Cir. 1992) (applying Rule 51 in the sentencing
context). We have identified the rule requiring objection to error as “one of the
most familiar procedural rubrics in the administration of justice.” United States
v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994). The rule encourages informed
decisionmaking and gives the district court an opportunity to correct errors prior
to appeal. See id.
      The only error noted by the Government during the sentencing hearing
related to the statutory maximum of 48 months. The Government’s statement
as to the statutory maximum did not call the district court’s attention to the
arguments now raised on appeal as to the district court’s Guidelines calculation
and reasonableness of the district court’s sentence. See United States v. Castillo,
386 F.3d 632, 636 (5th Cir. 2004) (reviewing Government’s appellate arguments
for plain error when grounds for Government objection were not raised in
district court). In Castillo we recognized that the Government had not preserved
its objection to a downward departure, despite the fact that the Government
informed the district court generally of its objection, because the issues raised
by the Government on appeal were not presented to the district court as
“grounds for that objection.” Castillo, 386 F.3d at 636. In this case, the
Government has not done so much; it raised no objection to either of the issues
before us. The district court gave the Government ample opportunity to raise
an objection to both the Guidelines calculation and the reasonableness of the
district court’s sentence. The Government did not raise its calculation objection

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                                  No. 06-51235

after review of the PSR, nor did it raise any objection to the eventual Guidelines
calculation as announced by the district court. The Government also failed to
object to the reasonableness of the district court’s sentence. As such, we review
both for plain error. See FED. R. CRIM. P. 52(b).
                                        III
                                         A
      18 U.S.C. § 3742(f) requires that we vacate and remand a sentence
“imposed as a result of an incorrect application of the sentencing guidelines.” We
have recognized that § 3742(f) survived Booker. See United States v. Villegas,
404 F.3d 355, 362 (5th Cir. 2005). Under the statute, we normally review the
district court’s interpretation and application of the Guidelines de novo and
vacate a sentence that directly resulted from a Guidelines error. See United
States v. Tzep-Mejia, 461 F.3d 522, 526 (5th Cir. 2006). Where, as here, the
Government has not preserved its objection to the district court’s Guidelines
calculation we ask whether the district court plainly erred in sentencing Saleh
to probation while considering the 24-month Guidelines range provided by the
PSR. To satisfy the plain error standard, the Government must show: (1) error;
(2) that is plain (clear or obvious); and (3) affects substantial rights. See United
States v. Olano, 507 U.S. 725, 730-36 (1993). If all three conditions are met, we
may exercise our discretion to correct the error when it affects the fairness,
integrity, or public reputation of judicial proceedings. See id.; United States v.
Gore, 298 F.3d 322, 324 (5th Cir. 2002).
      Under the advisory sentencing regime, we have described sentences as
falling into three types))(1) a sentence within a properly calculated range; (2)
a sentence that includes an upward or downward departure as allowed by the
Guidelines; or (3) a non-Guidelines sentence which is either higher or lower than
the relevant guideline sentence. See United States v. Davis, 478 F.3d 266, 273
(5th Cir. 2007). In sentencing Saleh to probation, the district court imposed a

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non-Guidelines sentence.1 The Guidelines section referred to in the PSR, §
2B1.1(a)(2), does not authorize a downward departure that would result in
probation. Further, USSG § 5B1.1, which pertains to probation, states that
probation is allowed only if the defendant’s range is within Zone A or Zone B, i.e.,
an offense level of 10 or less. Saleh’s offense level of 23 falls under Zone D.
        In imposing its non-Guidelines sentence, the district court stated the
Guidelines range was 24 months. The district court erred in calculating Saleh’s
Guidelines range. The PSR, upon which the district court relied, noted that a
total offense level of 23, combined with Saleh’s Category I criminal history,
results in a Guidelines range of 46-57 months of imprisonment. The PSR then
stated that the Guidelines range had to be recalculated to 24 months pursuant
to USSG § 5G1.1(c)(1) to harmonize the Guidelines with the statutory maximum
in 18 U.S.C. § 1010. However, USSG § 5G1.1 pertains to “Sentencing on a Single
Count of Conviction.” The following section, § 5G1.2, pertains to “Sentencing on
Multiple Counts of Conviction.” As noted above, Saleh pleaded guilty to two
counts. Section 5G1.2(d) provides as follows:
        If the sentence imposed on the count carrying the highest statutory
        maximum is less than the total punishment, then the sentence
        imposed on one or more of the other counts shall run consecutively,
        but only to the extent necessary to produce a combined sentence
        equal to the total punishment. In all other respects, sentences on all
        counts shall run concurrently, except to the extent otherwise
        required by law.

The “total punishment” is determined by the adjusted combined offense level.
§ 5G1.2, comment; see United States v. Garcia, 322 F.3d 842, 846 (5th Cir. 2003)
(referring to § 5G1.2(d): “The Guidelines are clear, however, that where the



        1
          Both parties refer to the district court’s sentence as a non-Guidelines sentence, and Saleh fails
to indicate any authority for a downward departure. However, we must make our own determination
of the sentence because it affects our standard of review, and “no party has the power to control our
standard of review.” United States v. Vonsteen, 950 F.2d 1086, 1091 (5th Cir. 1991).

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                                  No. 06-51235

statutory maximum is less than the minimum total punishment required by the
Guidelines, the district court shall impose consecutive sentences to the extent
necessary to meet the minimum total punishment.”).
      In this case, the maximum possible sentence under § 1010 for either of
Saleh’s two counts is 24 months, less than the 46-month total minimum
punishment under the Guidelines. Accordingly, based on USSG § 5G1.2(d), the
district court should have calculated a maximum of 24 months for one count, and
a consecutive sentence of 22 months on the second count to arrive at a minimum
Guidelines sentence of 46 months. The district court thus erred in its Guidelines
calculation. Because the Guidelines and our precedent provide clear guidance
as to the proper calculation, the district court’s error was plain.
      To satisfy the plain error standard, the Government must also show that
the district court’s plain error affected its substantial rights. In Olano, the
Supreme Court stated that to satisfy the substantial rights prong, the appellant
must “make a specific showing of prejudice”))that is, the error “must have
affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734-
35. The district court’s error in calculating the Guidelines range arguably could
have affected the outcome of Saleh’s sentencing proceedings. We have doubts as
to whether the district court would have sentenced Saleh to probation knowing
that the proper Guidelines range called for a minimum of 46 months’
imprisonment))nearly twice what the district court considered. Considering a
Guidelines minimum of 24 months, Saleh’s offense level of 23 is still far greater
than the maximum offense level of 10 for which probation is authorized under
the Guidelines. Even assuming arguendo that the district court’s plain error
affected the substantial rights of the Government, we decline to exercise our
discretion to reverse the plain error of the district court. See Castillo, 386 F.3d
at 637. After being made aware of Saleh’s contention on appeal that no objection
had been raised, the Government failed to argue in a meaningful way how it

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                                            No. 06-51235

might be entitled to relief under the plain error standard. The Government
made no showing of how its substantial rights were affected by the calculation
error, or how the error impacted the fairness, integrity, or public reputation of
judicial proceedings. Under these circumstances we decline to exercise our
discretion to vacate Saleh’s sentence based on the miscalculated guidelines range
used by the district court.
                                                   B
        The Government also argues that Saleh’s sentence is unreasonable and
should be vacated because the district court failed to consider all of the relevant
factors under § 3553(a), or because the sentence represents a clear error in
judgment in balancing the factors.                       Ordinarily, we would review the
reasonableness of a non-Guidelines sentence by applying an abuse of discretion
standard. United States v. Reinhart, 442 F.3d 857, 862 (5th Cir. 2006), cert.
denied, --- U.S. --- , 127 S.C.t 131, 166 L.Ed.2d 96 (2006). But we review a non-
Guidelines sentence with less than our ususal deference when the district court
operates with a miscalculated guidelines range. See United States v. Duhon, 440
F.3d 711, 716 (5th Cir. 2006). Where the appellant has raised no objection as to
reasonableness, the plain error standard applies. See United States v. Peltier,
No. 05-30440, 2007 WL 3076932, at *2, --- F.3d --- , --- (5th Cir. Oct. 23, 2007).
        We note that the district court, through its adoption of the PSR, its
reasons for sentence, and its statements at the sentencing hearing, considered
many of the factors under § 3553(a).2 While the district court considered the

        2
          For example, in considering the seriousness of the crime, the court noted that the offense was
serious, with a lot of money lost by financial institutions, but that Saleh did not profit from the scheme
in the same manner as the other codefendants. Despite the seriousness of the crime, the district court
recognized that Saleh had no prior criminal history, and no past pattern of similar conduct. As to
Saleh’s characteristics, he was released on bond with pretrial supervision. During his two years of
supervision, no violations were reported to the court. During the sentencing hearing, the district court
noted that a number of persons made statements, either through letters to the court or through
testimony at the hearing, as to Saleh’s good standing in the community. In issuing Saleh’s probation
sentence, the district court stated that it had “no particular reason to believe that a severe sentence
would do more to provide deterrence and protection of the public from future crimes by [Saleh],” and

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                                           No. 06-51235

factors under § 3553(a), we are concerned with the district court’s treatment of
Saleh’s crime. As noted above, the district court’s clear Guidelines error plays
a role in reducing our deference. And, while Saleh’s crime was not violent, the
seriousness of his crime should not be understated))Saleh derived more than
one million dollars in gross receipts as a result of his fraudulent actions. Saleh
also involved his employees and family members in his criminal behavior.
Moreover, Saleh’s sentence could be seen as expressing a special, lenient
sentencing regime for white collar criminals. As we have in the past, we again
express our distaste for sentencing that reflects different standards of justice
being applied to white and blue collar criminals. See United States v. Andrews,
390 F.3d 840, 848 (5th Cir. 2004). But while we note these concerns, the
Government again fails to raise any argument as to why vacatur is justified
under the plain error standard, and instead works under the erroneous
assumption that it objected below. Therefore, even assuming arguendo that the
first three prongs of the plain error standard are met, we refuse to exercise our
discretion to vacate Saleh’s sentence on unreasonableness grounds.
                                                  IV
        Because the Government failed to object at the district court level, we
review only for plain error. The Government made no attempt to satisfy its
heightened burden on appeal, failing to argue how its substantial rights had
been affected, or why we should exercise our discretion under the fourth prong
to correct the district court in spite the failure to object.                         Under these
circumstances, we refuse to exercise our discretion to correct the errors alleged
by the Government, and we AFFIRM the district court’s sentence.




that the sentence “is tailored to the crime to which you have pleaded guilty. . . in your situation with
regard to the other defendants.”

                                                   9
