     Case: 14-41236       Document: 00513326222         Page: 1     Date Filed: 12/31/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-41236                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                December 31, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

CARLOS ZUASO EMANUEL-FUENTES, also known as Carlos Zuaso
Emanuel, also known as Carlos Zuasoemanuel,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-452


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Assuming, arguendo, that the district court committed reversible plain
error in determining Carlos Zuaso Emanuel-Fuentes’ criminal-history
category under the advisory Sentencing Guidelines, at issue is whether we
should, in our discretion, vacate the sentence and remand for re-sentencing.
In that regard, Emanuel contends the court committed plain error in adopting



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                  No. 14-41236
the Pre-sentence Investigation Report’s (PSR) recommendation he receive one
criminal-history point for a 2009 state drug offense for which he was charged
but not convicted. AFFIRMED.
                                        I.
      Emanuel, a native and citizen of Honduras, illegally entered the United
States in 2008, and was deported in 2011. In April 2014, he was found in
Laredo, Texas, without documents allowing him to legally re-enter. Emanuel
pleaded guilty to unlawful re-entry after deportation, in violation of 8 U.S.C.
§ 1326.
      As discussed further below, Emanuel’s PSR calculated a total offense
level of 21 and four criminal-history points: three for a 2009 Texas sexual-
assault conviction; and one, at issue here, for a 2009 Texas possession-of-crack-
cocaine offense.
      Regarding the criminal-history point at issue, in 2009, prior to
sentencing for his sexual-assault conviction, Emanuel filed “Defendant’s
Motion Requesting Court To Consider Admitted Unadjudicated Offenses
During Sentencing”.     (Emphasis added.)      The motion listed his pending,
unadjudicated crack-cocaine charge and stated:         “[T]he defendant hereby
admits his guilt in . . . the above mentioned unadjudicated cause[ ]”. (Emphasis
added.)    The motion requested Emanuel’s drug charge be taken into
consideration at his sentencing for the sexual-assault charge; in exchange, the
State would be barred from further prosecuting that drug charge. The motion
was granted.
      In determining Emanuel’s advisory sentencing range under the
Guidelines for his 2014 unlawful re-entry conviction, the PSR stated Emanuel
was “adjudged guilty” of the 2009 crack-cocaine charge. Emanuel’s above-
described state-court motion was not part of the record for sentencing in
district court, and he did not object to its absence. Similarly, he did not object
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                                 No. 14-41236
to the PSR’s characterization of his having been “adjudged guilty” of his prior
drug offense.
      Based on that offense, the PSR assessed one criminal-history point,
pursuant to Guidelines §§ 4A1.1(c) and 4A1.2(a)(4) (add one criminal history
point if defendant was “convicted of an offense”, defined as: “the guilt of the
defendant has been established, whether by guilty plea, trial, or plea of nolo
contendere”). Emanuel did not object to the assessment of the criminal-history
point, which resulted in a criminal-history category of III, and a Guidelines
sentencing range of 46–57 months.            Had the point not been assessed,
Emanuel’s criminal-history would have been category II, with a sentencing
range of 41–51 months. See U.S.S.G. Ch.5, Pt.A (Sentencing Table).
      Prior to pronouncing sentence, the district court adopted the PSR in its
entirety. Emanuel was sentenced, inter alia, to 52 months’ imprisonment.
                                       II.
      For the first time on appeal, Emanuel claims the district court
erroneously assessed the criminal-history point for his 2009 drug-possession
offense, because he was charged with, but not convicted of, the offense. He
contends the offense was not adjudicated, and thus was mischaracterized in
the PSR.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the Guidelines sentencing range for use in deciding on the sentence
to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In that respect,
for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
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                                  No. 14-41236
      Because Emanuel failed to object in district court to the claimed error
now raised on appeal, however, review is only for plain error. E.g., United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under this
standard, he must show a forfeited plain (clear or obvious) error that affected
his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, this court has the discretion to correct the reversible plain error,
but only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.
                                        A.
      As stated supra, Emanuel’s 2009 state-court motion, in which he
admitted his guilt for the 2009 state drug offense, was not part of the record at
sentencing, and he did not object to its absence. For this appeal, Emanuel
moved to supplement the record with state court documents, including the
state-court motion. The motion to supplement the record was unopposed, and
our court granted it.
                                        B.
      In claiming he was erroneously assessed the criminal-history point for
his drug-possession offense, because he was charged with, but not convicted of,
it, and without citing authority, Emanuel asserts the offense falls outside the
Guidelines’ definition of “conviction”, which requires guilt be established “by
guilty plea, trial, or plea of nolo contendere”. U.S.S.G. § 4A1.2(a)(4). Emanuel
concedes: he did not object to the PSR or at sentencing; and, plain-error review
applies. In that regard, he contends the state-court motion demonstrates the
requisite plain error, because it proves the 2009 drug offense was not
adjudicated; therefore, it could not support the criminal-history point. (This is
in part in response to the Government’s position, discussed below, that an issue
of fact can never constitute plain error.)


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                                  No. 14-41236
      Emanuel asserts the error affected his substantial rights, because,
without the additional point, his criminal-history category would have dropped
from category III to II. In other words, his advisory sentencing range would
have been 41–51 months, rather than 46–57 months. He maintains his 52-
month sentence—one month above the top of the lower Guidelines sentencing
range—would not have been imposed had his criminal history been properly
calculated. In support, Emanuel points to the district court’s related statement
at sentencing (“I’m going to stay within the [G]uideline range”) and its failure
to suggest it would have imposed the same 52-month sentence regardless of
the advisory sentencing range.
      The Government counters:        whether Emanuel’s unadjudicated drug
offense resulted in a “conviction” under § 4A1.2(a)(4) is a question of fact that
could have been resolved by the district court; and, therefore, under United
States v. Lopez, 923 F.2d 47 (5th Cir. 1991), it cannot constitute plain error. In
that regard, our court has held that “[q]uestions of fact capable of resolution
by the district court upon proper objection at sentencing can never constitute
plain error”. Id. at 50; see also, United States v. Vital, 68 F.3d 114, 119 (5th
Cir. 1995); United States v. Bleike, 950 F.2d 214, 221 (5th Cir. 1991).
      Whether the characterization of Emanuel’s prior offense constituted
plain error need not be decided. Assuming, without deciding, Emanuel could
satisfy the elements required to show reversible plain error, this court has
discretion, as discussed above, to remedy the error; but, as stated, such
discretion should be exercised only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Puckett, 556 U.S. at 135.
This discretion element of plain-error review “is . . . to be applied on a case-
specific and fact-intensive basis”. Id. at 142.
      A review of the facts and circumstances underlying Emanuel’s sentence
demonstrate that an exercise of such discretion is inappropriate. See, e.g.,
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                                 No. 14-41236
United States v. Davis, 602 F.3d 643, 650–51 (5th Cir. 2010). First, as stated
supra, although we assume, arguendo, his state drug offense had not been
adjudicated, Emanuel admitted his guilt in his “Motion Requesting Court To
Consider Admitted Unadjudicated Offenses During Sentencing”. The motion
listed the pending charge and stated: “[T]he defendant hereby admits his guilt
in [ ] the above mentioned unadjudicated cause[ ]”. It also stated he “stands
adjudged guilty” of that offense. (Emphasis added.) The motion was signed by
Emanuel and his attorney.       In effect, the motion was a guilty plea.      As
discussed, although the motion was not part of the record at sentencing,
Emanuel successfully moved to include it in the record on appeal.
      Moreover, in contrast to the one-month disparity at issue, our court has
exercised its discretion to remedy an error when the imposed sentence has been
“materially or substantially above the properly calculated range”.       United
States v. John, 597 F.3d 263, 289 (5th Cir. 2010) (miscalculated sentence was
21 months outside the top of the correct Guidelines sentencing range); see also
United States v. Mudekunye, 646 F.3d 281, 290–91 (5th Cir. 2011) (19-month
disparity); United States v. Hernandez, 690 F.3d 613, 621–22 (5th Cir. 2012)
(12-month disparity).
      Conversely, in United States v. Avalos-Martinez, the erroneously-
imposed sentence at issue exceeded the correct Guidelines sentencing range by
one month. 700 F.3d 148, 154 (5th Cir. 2012). Although this court determined
Avalos demonstrated reversible plain error, id., it declined to exercise its
discretion to remedy the error, after “[c]onsidering the degree to which
[Avalos’] sentence exceed[ed] the correct [G]uidelines range and the facts
surrounding [his] convictions”. Id.
      The circumstances are similar here. When considering the entire record,
including Emanuel’s admission of guilt for the state drug offense, and the one-
month sentencing disparity, the assumed error should not be corrected because
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it does not “seriously affect the fairness, integrity or public reputation of
judicial proceedings”. Puckett, 556 U.S. at 135.
                                      III.
      For the foregoing reasons, the judgment is AFFIRMED.


James L. Dennis, Circuit Judge, concurs only in the judgment.




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