     Case: 11-41409       Document: 00512081765         Page: 1     Date Filed: 12/12/2012




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

                                                                            FILED
                                                                        December 12, 2012
                                     No. 11-41409
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUCAS CRUZ-TELON, also known as Luis Lopez-Rodriguez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:11-CR-954


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Appointed counsel for Lucas Cruz-Telon (Cruz) previously moved to
withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that
there were no nonfrivolous grounds for appeal. He now seeks to withdraw his
Anders motion and has filed a merits brief challenging the sentence Cruz
received following his guilty plea conviction for illegal reentry, in violation of
8 U.S.C. § 1326. The motion to withdraw the previously filed Anders motion is
granted.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41409     Document: 00512081765      Page: 2   Date Filed: 12/12/2012

                                   No. 11-41409

      Counsel now contends, for the first time, that the district court reversibly
erred in relying on an outdated version of the Guidelines and imposing a three-
year term of supervised release as part of Cruz’s sentence. Because Cruz did not
raise any challenge to the imposition of supervised release below, review is
limited to plain error. See United States v. Allison, 447 F.3d 402, 405 (5th Cir.
2006). To show plain error, Cruz must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error, but it will do so only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
      As the parties concede, the district court’s application of the outdated
version of the Guidelines was error that is clear or obvious. See 18 U.S.C.
§ 3553(a)(4)(A)(ii); see also United States v. Martin, 596 F.3d 284, 286 (5th Cir.
2010). However, the error did not affect Cruz’s substantial rights because, at
sentencing, the district court conducted the factual consideration whether the
imposition of supervised release “would provide an added measure of deterrence
and protection based on the facts and circumstances” of his particular case, in
accordance with the amended U.S.S.G. § 5D1.1 and commentary. § 5D1.1(c) &
comment. (n.5); see United States v. Dominguez-Alvarado, 695 F.3d 324, 329
(5th Cir. 2012). Thus, Cruz has not demonstrated any effect on his substantial
rights or any miscarriage of justice requiring reversal. See Puckett v. United
States, 556 U.S. at 135. Accordingly, the district court’s judgment is affirmed.
Cruz’s pro se motion for the appointment of substitute counsel, filed in response
to the Anders motion, is denied.
      AFFIRMED; MOTION TO WITHDRAW ANDERS MOTION GRANTED;
MOTION FOR APPOINTMENT OF SUBSTITUTE COUNSEL DENIED.




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