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

                                                                  FILED
                                                                January 23, 2008
                               No. 07-10029
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JUAN MANUEL PENA

                                           Defendant-Appellant


                 Appeals from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:06-CR-59-3


Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Juan Manuel Pena appeals the 33-month sentence he received following
his conviction for conspiracy to utter and possess counterfeit obligations of an
organization and for possession of counterfeit securities, in violation of
18 U.S.C. §§ 371 and 513(a). He argues, for the first time on appeal, that the
district court erred in assessing one criminal history point for his
November 2004 criminal trespass conviction as well as one point for his
November 2005 conviction for driving with a suspended license. To the extent

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-10029

that Pena argues that trial counsel was ineffective in failing to raise the
objection at sentencing, the argument will not be reviewed on direct appeal. See
United States v. Miller, 406 F.3d 323, 335-36 (5th Cir.), cert. denied, 546 U.S. 929
(2005); see also Massaro v. United States, 538 U.S. 500, 503-04 (2003).
      We review Pena’s argument for plain error, which requires him to show
that “(1) there was an error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.”          United States v. Villegas,
404 F.3d 355, 358 (5th Cir. 2005). The court exercises its discretion to correct
such error only if it “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 358-59.
      As the Government concedes, the inclusion in Pena’s criminal history
computation of his prior misdemeanor convictions for criminal trespass and
driving with a suspended license, for which he received nonprobated sentences
of less than 30 days each, was clear or obvious error under U.S.S.G.
§ 4A1.2(c)(1). Nevertheless, the error did not affect Pena’s substantial rights
because the same sentence could be imposed on remand under the correctly
calculated guidelines range. See United States v. Wheeler, 322 F.3d 823, 828
(5th Cir. 2003); see also United States v. Alford, 142 F.3d 825, 830
(5th Cir. 1998).
      Pena’s argument that his sentence must be vacated as “procedurally
unreasonable” either ignores or is an attempt to circumvent plain-error review,
which review survives Booker and is distinct from reasonableness review. See
Booker v. United States, 543 U.S. 220, 268 (2005); United States v. Mares,
402 F.3d 511, 520 (5th Cir.), cert. denied, 546 U.S. 828 (2005). Because Pena has
not met his burden of showing reversible plain error, the district court’s
judgment is AFFIRMED.




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