     Case: 10-10526     Document: 00511551126         Page: 1     Date Filed: 07/26/2011




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

                                                                            FILED
                                                                            July 26, 2011
                                     No. 10-10526
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADOLFO CABRERA-VALDOVINOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CR-353-1


Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Adolfo Cabrera-Valdovinos (Cabrera) pleaded guilty of illegal reentry after
removal from the United States and was sentenced at the top of the guidelines
imprisonment range to a 78-month term of imprisonment and to a two-year
period of supervised release. Cabrera has appealed his sentence.
        Cabrera contends that the district court committed a procedural error in
determining his sentence by considering facts that had no basis in the record,
that is, the likelihood that Cabrera had entered the United States illegally on

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10526   Document: 00511551126      Page: 2   Date Filed: 07/26/2011


                                  No. 10-10526

more occasions than had been disclosed in the presentence report. Because
Cabrera did not preserve this claim of error adequately in the district court, we
have reviewed it for plain error. See United States v. Gutierrez, 635 F.3d 148,
152 (5th Cir. 2011). Under the plain-error standard, we will “remedy forfeited
error only when it is plain and affects the defendant’s substantial rights.”
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). If
these elements are met, we have “discretion to correct the forfeited error only if
it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
      In sentencing a defendant, “[t]he district court must make an
individualized assessment based on the facts presented.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). By stating that the “law
of averages” supported the supposition that Cabrera had entered the United
States illegally on more than four occasions, the district court arguably
considered facts that were outside the record and that were not individualized.
Assuming without deciding that the district court erred, we hold that Cabrera
cannot show that his substantial rights were affected. See Mondragon-Santiago,
564 F.3d at 361. The district court’s decision to sentence Cabrera at the top of
the guidelines range was amply supported by the fact that Cabrera had entered
the country illegally on four occasions and was not deterred by a prior sentence
of imprisonment for illegal reentry. The judgment is
      AFFIRMED.




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