     Case: 09-11228 Document: 00511387329 Page: 1 Date Filed: 02/18/2011




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

                                                 FILED
                                                                          February 18, 2011
                                     No. 09-11228
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

JESUS MANUEL SANTACRUZ-RAMIREZ,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 2:09-CR-37-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Jesus Santacruz-Ramirez, an illegal alien, pleaded guilty of being found


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 09-11228 Document: 00511387329 Page: 2 Date Filed: 02/18/2011

                                    No. 09-11228

unlawfully in the United States after deportation following a felony conviction.
He was sentenced to a 35-month term of imprisonment, which was an upward
variance from the guideline range of 21-27 months determined by the district
court. Santacruz-Ramirez appeals, contending that the court erred in adding
two criminal history points pursuant to U.S.S.G. § 4A1.1(e).
      According to § 4A1.1(e), two points are added to a criminal history score
if “the defendant committed the instant offense less than two years after release
from imprisonment on a sentence counted under [§ 4A.1.1] (a) or (b) or while in
imprisonment or escape status on such a sentence.” The presentence report
(“PSR”) shows that Santacruz-Ramirez was released on a sentence for man-
slaughter in August 2005, was deported in March 2006, and returned to the
United States illegally on an unspecified date in 2007. The PSR indicates that
the application of § 4A1.1(e) was based on the date of Santacruz-Ramirez’s de-
portation, rather than on the date of his release from imprisonment, an error in
interpreting or applying the guideline that is subject to plain-error review given
Santacruz-Ramirez’s failure to object. See United States v. Alvarado-Santilano,
434 F.3d 794, 795-96 (5th Cir. 2005).
      To establish plain error, Santacruz-Ramirez must show a forfeited error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has
the discretion to correct the error, but only if it seriously affects the fairness, in-
tegrity, or public reputation of judicial proceedings. Id.
      Absent the application of two criminal history points under § 4A.1.1(e), the
guideline range would have been 15-21 months instead of 21-27 months. The
district court, however, did not base the sentence on the guideline range. Rather,
the court imposed an upward variance, noting that Santacruz-Ramirez’s crimin-
al history involved drugs and firearms and citing the need to punish, deter crim-
inal activity, and protect the community. Santacruz-Ramirez has not pointed to
any evidence to show that the court would have imposed a lesser sentence had

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                                  No. 09-11228

it determined a lower guideline range. Further, there is substantial evidence in
the record to support the upward variance. Because Santacruz-Ramirez has not
shown that the court could not impose the same sentence on remand or that
there is a reasonable probability that, but for the error, the sentence would have
been lower, he cannot show plain error. See Puckett, 529 U.S. at 129; United
States v. Davis, 602 F.3d 643, 648-52 (5th Cir. 2010).
      AFFIRMED.




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