     Case: 10-41074     Document: 00511552738         Page: 1     Date Filed: 07/27/2011




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

                                                                            FILED
                                                                            July 27, 2011
                                     No. 10-41074
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALEX ENRIQUE SANCHEZ-BRENEZ,

                                                  Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:10-CR-642-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
         Alex Enrique Sanchez-Brenez (Sanchez) appeals the sentence imposed
following his guilty plea conviction for being unlawfully present in the United
States following removal. For the first time on appeal, Sanchez argues that the
district court plainly erred in its calculation of his criminal history category
because it applied a criminal history point for a stale prior conviction for petty
theft.



         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41074

         The Government maintains that Sanchez waived the issue he raises on
appeal by stating that there were no corrections or objections to the presentence
report (PSR) that the district court needed to consider and by agreeing that the
guidelines sentence range was 46-57 months of imprisonment. It contends that
the statements of Sanchez’s counsel were a knowing waiver of the issue rather
than a general statement of no objections to the PSR. Sanchez asserts that he
did not waive the issue because he did not intentionally relinquish a known
right.
         Although Sanchez did not object to the PSR and affirmatively agreed with
the guidelines sentence range calculations set forth in the PSR, nothing in the
record indicates that Sanchez knew that he had a viable challenge to his
criminal history category and that he intentionally relinquished that challenge.
Accordingly, Sanchez did not waive the argument he raises on appeal. See
United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir. 2010).
         Sanchez argues that the district court committed plain error by applying
one criminal history point for his prior conviction for petty theft because the
petty theft conviction was too remote in time to be counted. He asserts that
without the erroneously applied criminal history point, his criminal history
category would have been II instead of III, and his guidelines sentence range
would have been 41-51 months of imprisonment instead of 46-57 months of
imprisonment. Sanchez acknowledges that his sentence is within the correctly
calculated guidelines range, but he maintains that his substantial rights were
violated because the district court’s rejection of the request for a 50-month
sentence made by the Government and the probation officer and Sanchez’s
account of the torture and extortion he suffered in transit to the United States
show that the district court would likely have imposed a lesser sentence if it had
correctly calculated the guidelines range. In the alternative, Sanchez argues
that any error in calculating the guidelines range should presumptively affect
a defendant’s substantial rights even if the sentence is within the correctly

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                                    No. 10-41074

calculated guidelines range. Sanchez acknowledges that this argument is
foreclosed by circuit precedent, and he raises it to preserve the issue for further
review.
      Because Sanchez did not raise this issue in the district court, we review
for plain error only. See United States v. John, 597 F.3d 263, 282 (5th Cir. 2010).
To show plain error, Sanchez must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If he makes such a showing, we have the discretion to correct
the error but will do so only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      The district court erroneously applied one criminal history point for
Sanchez’s prior conviction for petty theft because the sentence for that offense
was less than one year and one month of imprisonment and the sentence was
imposed more than 10 years prior to the commencement of Sanchez’s present
offense. See U.S.S.G. § 4A1.2(e)(1)-(3). As the Government concedes, the error
was clear or obvious. See United States v. Arviso-Mata, 442 F.3d 382, 385 (5th
Cir. 2006).
      The district court erroneously calculated that Sanchez’s guidelines
sentence range was 46-57 months of imprisonment, and the correct guidelines
sentence range was 41-51 months of imprisonment. Sanchez’s sentence of 46
months of imprisonment was, therefore, at the bottom of the incorrectly
calculated guidelines range, but in the middle of the correctly calculated
guidelines range.
      To show an affect on his substantial rights, Sanchez must demonstrate a
“reasonable probability that, but for the district court’s misapplication of the
Guidelines, he would have received a lesser sentence.” United States v. Blocker,
612 F.3d 413, 416 (5th Cir.), cert. denied, 131 S. Ct. 623 (2010) (internal
quotation marks and citation omitted). Where the sentence imposed “falls inside
both the correct and incorrect guidelines ranges, we have shown considerable

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reluctance in finding a reasonable probability that the district court would have
settled on a lower sentence.” Id. (internal quotation marks and citation omitted).
In such cases, “we do not assume, in the absence of additional evidence, that the
sentence affects a defendant’s substantial rights.” Id.
      While the district court rejected the request of the Government and the
probation officer for a sentence of 50 months of imprisonment, it also rejected
Sanchez’s request for a sentence below the incorrectly calculated guidelines
range. The district court sentenced Sanchez at the bottom of the incorrectly
calculated guidelines range without giving any indication that it would have
imposed a lesser sentence if the guidelines range were lower. The present case
is indistinguishable from United States v. Jasso, 587 F.3d 706, 713 (5th Cir.
2009), which included the same incorrectly calculated guidelines range, the same
correctly calculated guidelines range, and the same sentence. As in Jasso, the
sentence falls exactly in the middle of the correctly calculated guidelines range,
and while the district court sentenced Sanchez to a sentence at the bottom of the
incorrectly calculated guidelines range, there is no indication in the record that
the district court would have sentenced Sanchez at the bottom of any guidelines
range. See id. at 713-14 & n.11. Thus, like the defendant in Jasso, Sanchez
“cannot demonstrate a reasonable probability, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence,” and
he has not shown that the error affected his substantial rights. Id. at 714
(internal quotation marks and citation omitted). As Sanchez concedes, his
alternative argument that any guidelines calculation error presumptively affects
a defendant’s substantial rights is foreclosed. See Blocker, 612 F.3d at 416.
      AFFIRMED.




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