     Case: 19-10370      Document: 00515324610         Page: 1    Date Filed: 02/27/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-10370
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 27, 2020
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JORGE MADRID-URIARTE,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:18-CR-200-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Jorge Madrid-Uriarte appeals the above-guidelines sentence of 71
months of imprisonment imposed following his guilty plea conviction for illegal
reentry into the United States after removal. He contends the district court
improperly considered his unadjudicated arrests at the sentencing hearing.
According to Madrid-Uriarte, when the district court stated that it had
tentatively decided to overrule his objections to the presentence report (PSR)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10370

“for the reasons argued by the Government in response to the defendant’s
objections,” the district court concluded that his unadjudicated arrests
constituted “credible information that [Madrid-Uriarte] has engaged in other
criminal activity.” He maintains that he preserved this issue for appellate
review because he stated in his objections to the PSR that the court should
consider his “convictions rather than underlying criminal conduct.”
      Claims of procedural error at sentencing are ordinarily reviewed de novo,
United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012), but plain error
review applies if the error was not preserved in the district court, United States
v. Williams, 620 F.3d 483, 493 (5th Cir. 2010). “To preserve error, an objection
must be sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” United States v.
Wooley, 740 F.3d 359, 367 (5th Cir. 2014) (internal quotation marks and
citation omitted). Madrid-Uriarte’s arguments in the district court did not
alert the district court to consider the specific argument he is raising on appeal
and did not provide the court the opportunity to clarify whether it had
considered Madrid-Uriarte’s arrest record in determining the appropriate
sentence. Therefore, review is limited to plain error. See id. To establish plain
error, he must show a forfeited error that is clear and obvious and that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes such a showing, we have the discretion to correct the error but
should do so only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citation omitted).
      Although the district court stated that it was tentatively overruling
Madrid-Uriarte’s objections for the reasons given by the Government in its
response to his objections at the beginning of the sentencing hearing, the court



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                                No. 19-10370

did not expressly state that it had considered Madrid-Uriarte’s arrest record.
After considering the parties’ arguments and Madrid-Uriarte’s allocution, the
district court gave the following extensive reasons for the sentence imposed.
Madrid-Uriarte’s criminal history category substantially underrepresented the
seriousness of his criminal history and the likelihood that he would commit
other crimes.   He had a lengthy criminal history, beginning in 2001 and
continuing until his arrest for this offense. In addition, Madrid-Uriarte had
been removed to Mexico on seven prior occasions. His prior sentences and his
prior removals did not deter him from returning to the United States illegally
and committing further crimes. The court adopted the PSR, and its statements
at sentencing reflect that it relied on the PSR’s statements concerning factors
that might warrant an upward departure or variance. In view of the entire
record, the district court’s statements at the sentencing hearing do not
establish that it improperly considered Madrid-Uriarte’s arrest record. To the
extent that the district court’s statements could be construed as ambiguous
because it adopted the Government’s response, any error was not of the clear
or obvious type required by the plain error standard. See United States v.
Ibarra-Zelaya, 465 F.3d 596, 607 (5th Cir. 2006) (“Because the error, if there
was error, is based on an ambiguous statement, there can be no relief under
the plain error standard.”).
      AFFIRMED.




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