    Case: 13-11070    Document: 00512727824      Page: 1   Date Filed: 08/08/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                 No. 13-11070                     United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                    August 8, 2014
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

                                            Plaintiff–Appellee,

versus

JOSE ESTRADA NAVA, Also Known as Jose Maria Estrada,

                                            Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before DAVIS, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      Jose Estrada Nava challenges his sentence. Because he has not shown
plain error, we affirm.


                                       I.
      Estrada Nava pleaded guilty, in the Northern District of Texas, of illegal
reentry after deportation and was sentenced to twenty-seven months’
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                                        No. 13-11070
imprisonment and three years’ supervised release. The judgment of sentence
states that it will run consecutively with any sentence of imprisonment
imposed in his pending revocation proceeding in the Western District of Texas.
Subsequently, the Western District revoked Estrada Nava’s probation and
sentenced him to four months’ imprisonment to run consecutively with his
illegal-reentry sentence. Estrada Nava appeals his twenty-seven-month sen-
tence, claiming that the district court erred in ordering that it run consecu-
tively with his pending federal sentence in the Western District.


                                              II.
      Because Estrada Nava did not object to the order of consecutive sen-
tences in the district court, we review only for plain error. Under plain-error
review, this court may correct a forfeited error in its “sound discretion” on a
showing of (1) an error (2) that is clear or obvious, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or public reputation
of judicial proceedings. United States v. Olano, 507 U.S. 725, 732–37 (1993);
see also Puckett v. United States, 556 U.S. 129, 135–36 (2009). “Meeting all
four prongs is difficult, as it should be.” Puckett, 556 U.S. at 135 (internal quo-
tation marks omitted).


                                              III.
      The order to run the illegal reentry sentence consecutively with the
pending federal sentence is clear and obvious error under prongs one and two.
See United States v. Quintana-Gomez, 521 F.3d 495, 498 (5th Cir. 2008). 1
Estrada Nava, however, has failed to meet his burden as to prong three.
      Estrada Nava bears the burden of showing that his substantial rights


      1   See also United States v. Price, 516 F.3d 285, 288–89 (5th Cir. 2008).
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were affected by the error. 2 Affecting substantial rights “means that the error
must have been prejudicial: It must have affected the outcome of the district
court proceedings.” 3 Estrada Nava argues that we should consider only the
present proceedings in isolation from those held in the Western District
because they are beyond the scope of the “district court proceedings” spoken of
by the Supreme Court. He argues that his substantial rights were affected
because the error “is the outcome” of the proceedings and thus must affect his
substantial rights.
       This argument betrays a fundamental misunderstanding of what prong
three requires. We may consider connected district court cases when deter-
mining whether a defendant has been prejudiced by error, especially in situa-
tions where—as here—the error necessarily involves a separate proceeding.
To determine how the error affected the outcome of the proceedings, we must
consider how the error affected the actual term of imprisonment. 4 Addition-
ally, it is not enough merely to claim that an illegal term in the judgment must
affect the outcome. This suggestion merely recasts the error—ordering a term
of imprisonment to be run consecutively with a pending federal action—as the
effect on substantial rights, something specifically rejected by the Supreme
Court. 5


       2  Olano, 507 U.S. at 734–35 (“Rule 52(b) normally requires the same kind of inquiry
[as Rule 52(a)], with one important difference: It is the defendant rather than the Govern-
ment who bears the burden of persuasion with respect to prejudice. In most cases, a court of
appeals cannot correct the forfeited error unless the defendant shows that the error was pre-
judicial.”).
       3   Id. at 734.
       4   See, e.g., Puckett, 556 U.S. at 141–42 (“The defendant whose plea agreement has
been broken by the Government will not always be able to show prejudice, either because he
obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor
promised to request) or because he likely would not have obtained those benefits in any event
. . . .”).
       5   See id. at 142 (“Eliminating the third plain-error prong through semantics makes a
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                                     No. 13-11070
      Instead, the proper inquiry is to consider how the error in this case, the
offending order, affected the ultimate outcome, the length and terms of the
sentence that Estrada Nava will serve. To do this, we must consider the effects
of both the Northern District judgment appealed in this case and the effects of
the action of the Western District. After the Northern District erroneously
ordered its sentence to run consecutively with that of the Western District,
there were three possible outcomes: (1) The Western District could have sen-
tenced Estrada Nava to no additional term of imprisonment, which would not
have altered the term of imprisonment because he would only serve the initial
twenty-seven-months’ imprisonment; (2) it could have ordered its sentence to
run concurrently with the previous sentence, in which case the previous erron-
eous order would be given no effect, and he still would only serve the initial
twenty-seven-months’ imprisonment; or, (3) it could—as actually occurred—
order its sentence to run consecutively with the previous sentence, in which
case both sentences are identical, and the erroneous order is consistent with
that of the proper district court. In no situation does the error alone affect the
outcome of Estrada Nava’s proceedings or his substantial rights.
      The only way Estrada Nava can possibly prevail in meeting prong three
is to recast his argument as follows: Because the erroneous order placed the
second district court between Scylla and Charybdis by presenting the “choice
of either ignoring his own judgment [that a concurrent sentence was appropri-
ate] or disobeying the order of another district court,” 6 the error must have
influenced the Western District into conforming to the previous ruling and
thereby affected his substantial rights by increasing his actual sentence of


nullity of Olano’s instruction that a defendant normally must make a specific showing of
prejudice in order to obtain relief.” (internal quotation marks and citation omitted)).
      6 Quintana-Gomez, 521 F.3d at 498 (alteration in original) (quoting United States v.
Smith, 472 F.3d 222, 227 (4th Cir. 2006)).
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                                 No. 13-11070
imprisonment by four months. If the error influenced the Western District in
such a way as to order consecutive sentencing when it otherwise would have
ordered concurrent sentencing, the error must have affected substantial rights.
      Though this might be true, it is not by necessity true. It is equally pos-
sible that, in spite of the false dilemma presented, the Western District
imposed consecutive sentences because it independently believed that consec-
utive sentences were appropriate. It is most likely that the Western District
would have independently come to this conclusion in the present context where
the second sentence involves the revocation of probation because the sentenc-
ing guidelines state that “[a]ny term of imprisonment imposed upon revocation
of the probation or supervised release shall be ordered to be served consecu-
tively to any sentence of imprisonment that the defendant is serving.” U.S.S.G.
§ 7B1.3(f). Although the guidelines do not compel such a result, this presump-
tion increases the likelihood that the second district court would have indepen-
dently ordered consecutive sentencing. As a result, Estrada Nava fails to meet
prong three of plain-error review.
      Because Estrada Nava has failed to meet prong three, we need not con-
sider whether the forfeited error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.      The judgment of sentence is
AFFIRMED.




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