     Case: 16-30803      Document: 00514065256         Page: 1    Date Filed: 07/10/2017




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

                                      No. 16-30803
                                                                                Fifth Circuit

                                                                              FILED
                                                                          July 10, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

SIMON CRUZ-PEÑA,

              Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-181-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Simon Cruz-Peña pleaded guilty to illegal reentry into the United States
in violation of 8 U.S.C. § 1326(a) and was sentenced to a 48-month term of
imprisonment. Cruz-Peña appeals his sentence, arguing that the district court
improperly calculated his guidelines range. For the reasons explained below,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                I. Background
      At sentencing, the district court adopted the Presentence Investigation
Report (“PSR”), which calculated Cruz-Peña’s total offense level at 21 and his
criminal history category at III. Cruz-Peña’s criminal history category was
raised from II to III because the PSR counted a 2005 Florida conviction for
assault on a law enforcement officer (“Florida assault”) when determining his
criminal history category.      See U.S. SENTENCING GUIDELINES MANUAL
(“U.S.S.G.”) Ch. 5, Pt. A (U.S. SENTENCING COMM’N 2015).              Cruz-Peña
committed the Florida assault at age 16, but he was convicted as an adult after
he provided a false date of birth to the court. At the time he committed the
instant reentry offense, there was an outstanding probation violation warrant
for the Florida assault, which qualifies as a criminal justice sentence under
U.S.S.G. § 4A1.1(d). See U.S.S.G. § 4A1.2(m). The PSR counted the Florida
assault as one criminal history point under U.S.S.G. § 4A1.1(c), and then added
two additional criminal history points under § 4A1.1(d) because Cruz-Peña
committed the instant reentry offense while under a criminal justice sentence
stemming from the Florida assault. Thus, when counting the Florida assault,
the PSR assessed a total of three criminal history points to Cruz-Peña.
      Adding the three criminal history points from the Florida assault to the
three criminal history points for another assault conviction resulted in a
criminal history category of III. See id. With an offense level of 21 and criminal
history category of III, Cruz-Peña’s guidelines range was 46-57 months of
imprisonment. Counsel for Cruz-Peña requested a downward departure from
the guidelines range and recommended that “41 months would be appropriate
in this matter.” The district court sentenced Cruz-Peña to a term of 48 months
after emphasizing that both of his assault convictions were “extremely
serious.” Cruz-Peña argues on appeal that his Florida assault should not have
been counted in calculating his criminal history category. Without the Florida

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                                  No. 16-30803

assault, Cruz-Peña’s guidelines range would have been 41-51 months. See
U.S.S.G. Ch. 5, Pt. A.
                            II. Standard of Review
      We review for plain error because Cruz-Peña did not object to the
calculation of his criminal history category. United States v. Avalos-Martinez,
700 F.3d 148, 153 (5th Cir. 2012) (per curiam). To show plain error, Cruz-Peña
“must show (1) an error (2) that was clear or obvious (3) that affected his
substantial rights.” Id. If Cruz-Peña establishes plain error, “we have the
discretion to correct the error if it ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” Id. (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). Even though the Government concedes that
the first three factors of plain error are met, we are not bound by the
Government’s concessions of error and conduct our own independent review.
United States v. Williams, 821 F.3d 656, 658 (5th Cir. 2016).
                                 III. Discussion
      Cruz-Peña argues that, pursuant to U.S.S.G. § 4A1.2(d), his Florida
assault should not have been counted because he was under the age of 18 when
he committed the assault and the sentence was imposed more than five years
before the instant reentry offense. Our review suggests that Cruz-Peña is
correct, however, we pretermit further consideration of whether the first two
prongs of plain error are met because we conclude that it would not change the
result in this case.
      Assuming arguendo that a clear error was committed, we would have to
conclude that the third prong is met because “the record is silent as to what
the district court might have done had it considered the correct Guidelines
range.” See Molina-Martinez v. United States, 136 S. Ct. 1338, 1348 (2016).
Although the district court considered and rejected a request for a downward
variance, it did so without reference to the correct guidelines range. As the

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Supreme Court observed, “[t]he Guidelines inform and instruct the district
court’s determination of an appropriate sentence.” Id. at 1346.
      The remaining question, then, is whether we should exercise our
discretion to correct the error. “[W]hether a sentencing error seriously affects
the fairness, integrity, or public reputation of judicial proceedings is dependent
upon the degree of the error and the particular facts of the case.” United States
v. John, 597 F.3d 263, 288 (5th Cir. 2010). We will exercise our discretion “in
those circumstances in which a miscarriage of justice would otherwise result.”
United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc)
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)). This assessment
cannot be distilled into a single test or set of factors because the fourth prong
of plain error review should be determined “on a case-specific and fact-
intensive basis. . . . [A] ‘per se approach to plain-error review is flawed.’” John,
597 F.3d at 286 (quoting Puckett, 556 U.S. at 142).
      Nevertheless, our precedent has identified some guiding principles. We
have repeatedly noted that “[n]ot every error that increases a sentence need be
corrected by a call upon plain error doctrine.” United States v. Davis, 602 F.3d
643, 652 (5th Cir. 2010) (alteration in original) (quoting United States v. Ellis,
564 F.3d 370, 378 (5th Cir. 2009)); accord Avalos-Martinez, 700 F.3d at 154;
see also Escalante-Reyes, 689 F.3d at 425 (“We continue to adhere to our
precedent declining ‘to adopt a blanket rule that once prejudice is found under
the [third plain error prong], the error invariably requires correction.’”
(alteration in original) (quoting United States v. Reyna, 358 F.3d 344, 352 (5th
Cir. 2004) (en banc))). Furthermore, we have also repeatedly observed that it
can be appropriate to exercise our discretion “when the sentence is materially
or substantially above the properly calculated range.” John, 597 F.3d at 289;
accord United States v. Torres, 856 F.3d 1095, 1100 (5th Cir. 2017); United
States v. Rosales-Mireles, 850 F.3d 246, 250 (5th Cir. 2017).

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         Here, the sentence is not materially or substantially above the properly
calculated range. To the contrary, the 48-month sentence falls within both the
incorrect (46-57 months) and correct (41-51 months) guidelines ranges. Thus,
as in Rosales-Mireles, “there is no discrepancy between the sentence and the
correctly calculated range.” See 850 F.3d at 250. Although the district court
imposed a sentence just two months above the bottom of the incorrect range, it
was not the absolute bottom, making it more like Rosales-Mireles—where the
district court imposed a sentence that was one month above the bottom of the
incorrect range and the difference between the bottom of both ranges was only
seven months—than like cases with much greater variations. See 850 F.3d at
251. 1
         Cruz-Peña’s criminal history is also an important consideration when
determining whether we exercise our discretion. See Avalos-Martinez, 700
F.3d at 154; cf. 18 U.S.C. § 3553(a)(1).             During sentencing, the judge
emphasized that Cruz-Peña’s two assaults were “extremely serious” and
rejected a request for a sentence of 41 months, which would have been the
bottom of the correctly calculated range.          Moreover, Cruz-Peña violated his
probation for the Florida assault by failing to report to the probation
department, pay his monthly fee, and follow his probation officer’s instructions
provided in a warning card, a violation that apparently continues to this day
and which is not otherwise accounted for in the guidelines determination.
         Under these circumstances—where the sentence falls within the correct
range, the difference between the correct and incorrect ranges is relatively


         Cruz-Peña argues in his reply brief for the first time that, when considering the
         1

degree of error, we should look to the percentage that the sentence imposed is above the
corresponding sentence of the correct range rather than how many months the sentence
exceeds the correct range. Because this issue was not raised in his initial brief, it is
abandoned. See United States v. Bullock, 71 F.3d 171, 178 (5th Cir. 1995) (“An appellant
abandons all issues not raised and argued in [his] initial brief on appeal.” (alteration in
original)).
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small, the defendant committed multiple “extremely serious” assaults and
subsequently violated his probation, and the district court declined a request
to impose a sentence at the bottom of the correct range—we cannot say that a
miscarriage of justice would result if the presumed error is not corrected. See
Rosales-Mireles, 850 F.3d at 250; Avalos-Martinez, 700 F.3d at 154.
Accordingly, we decline to exercise our discretion to correct this alleged
guidelines error.
      AFFIRMED.




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