     Case: 16-50895      Document: 00514025704         Page: 1    Date Filed: 06/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fif h Circuit
                                    No. 16-50895                                    FILED
                                  Summary Calendar                               June 8, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                    Clerk


                                                 Plaintiff-Appellee

v.

RICKY MENDOZA RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:07-CR-39-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Ricky Mendoza Rodriguez appeals the sentence
imposed on the revocation of his supervised release.                 The district court
sentenced him above his guidelines range to 36 months of imprisonment,
followed by eight years of supervised release.             Rodriguez argues that the
district court committed plain error in sentencing him because it considered
improper, irrelevant, and unsupported factors. Specifically, he contends that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50895

his sentence was based on the district court’s unsupported belief that he
presented false information about himself, improper consideration of the fact
that he had children with three women in non-marital relationships, and
improper consideration of the severity of his original offense of conviction.
      We review Rodriguez’s arguments under the plain error standard
because he did not object to his sentence in the district court. See United States
v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To succeed on plain error
review, Rodriguez must show a forfeited error that is clear or obvious and that
affects 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
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Rodriguez has not demonstrated plain error in this case. With respect
to his contention that the district court erroneously faulted him for fabricating
stories, we conclude that Rodriguez made several factual statements which the
district court could have disbelieved as self-serving based on an adverse
credibility finding, such as his statements that he intended to get married,
absconded out of care for his family, and was law-abiding during the nearly
five years he absconded. Credibility “determinations in sentencing hearings
are peculiarly within the province of the trier-of-fact.” United States v. Davis,
754 F.3d 278, 285 (5th Cir. 2014).
      Next, Rodriguez contends that it was improper for the district court to
consider the fact that he had children with three women in non-marital
relationships because such a circumstance was not illegal, did not violate
Rodriguez’s supervised release conditions, and fell within his constitutionally
protected rights to engage in non-marital sex and to bear children regardless
of wedlock. “To be ‘plain,’ legal error must be clear or obvious, rather than



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                                  No. 16-50895

subject to reasonable dispute.” United States v. Warren, 720 F.3d 321, 326-27
(5th Cir. 2013) (internal quotation marks and citation omitted). The cases
cited by Rodriguez in support of this argument do not directly address whether
a district court is prohibited at sentencing from considering a defendant’s
relationship to his children born out of wedlock and their mothers. Rodriguez
has not shown that the law is settled on this issue and thus has not satisfied
his burden of demonstrating clear and obvious error under plain error review.
See Warren, 720 F.3d at 326-27.
      Furthermore, “a sentencing error occurs when an impermissible
consideration is a dominant factor in the court’s revocation sentence, but not
when it is merely a secondary concern or an additional justification for the
sentence.” United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015). In
pronouncing the sentence, the district court referenced several factors that
Rodriguez does not contest, including Rodriguez’s use of alcohol, arrest for
driving while intoxicated, and the fact that he absconded for 56 months. It is
at least equally plausible that the uncontested reasons were the primary bases
for Rodriguez’s above-guidelines sentence and that the issues he challenges
were nothing more than a secondary concern or additional justification for the
sentence. See Rivera, 784 F.3d at 1017. Because Rodriguez did not object to
alert the district court to clarify itself, we cannot conclude that his sentence
was based on any improper or irrelevant consideration of his relationship with
his children and their mothers. See United States v. Hernandez-Martinez, 485
F.3d 270, 274 (5th Cir. 2007).
      Rodriguez’s final argument concerns the following comment by the
district court about his original conviction: “He has a very serious crime of
dealing with crack cocaine for which he got sentenced, a very adequate
sentence at the time.” This comment does not show that the seriousness of



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                                  No. 16-50895

Rodriguez’s original conviction, if it was a consideration at all, was a dominant
factor in the court’s revocation sentence rather than a secondary or additional
concern. See Rivera, 784 F.3d at 1017; Hernandez-Martinez, 485 F.3d at 274.
      In addition, Rodriguez also has not demonstrated an effect on his
substantial rights with respect to any of the factors he challenges. To show
that a sentencing error affected his substantial rights, an appellant must
demonstrate a reasonable probability that he would have received a lesser
sentence but for the error. Rivera, 784 F.3d at 1018. Rodriguez has not shown
that there is evidence of prejudice in the record. His assertion that the extent
of the upward variance suggests that his sentence was influenced by the
district court’s consideration of improper factors is speculative and insufficient
to demonstrate a reasonable probability that he would have received a lesser
sentence but for the considerations he challenges.         See United States v.
Castaneda-Lozoya, 812 F.3d 457, 460 (5th Cir. 2016).
      Finally, Rodriguez has not shown that we should exercise our discretion
on the grounds that any error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Puckett, 556 U.S. at 135. The record
provides support that the decision not to remand for resentencing would not
result in a miscarriage of justice. United States v. Wikkerink, 841 F.3d 327,
339 (5th Cir. 2016).     Accordingly, the judgment of the district court is
AFFIRMED.




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