     Case: 15-41146      Document: 00513767953         Page: 1    Date Filed: 11/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 15-41146                             FILED
                                                                       November 21, 2016
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff–Appellee,

v.

AGUSTIN PATINO-ALMENDARIZ,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-399-1


Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       In May 2015, Defendant–Appellant Agustin Patino-Almendariz pleaded
guilty under 8 U.S.C. §§ 1326(a) and 1326(b)(1) to unlawfully reentering the
United States after having been previously deported for a felony conviction.
During sentencing, the district court erred in calculating Patino-Almendariz’s
total criminal history points and thus imposed a sentence that exceeded the
correct sentencing range under the U.S. Sentencing Guidelines (the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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“Guidelines”). We hold that the district court’s error does not seriously affect
the fairness, integrity, or public reputation of judicial proceedings, and
therefore we AFFIRM.
                              I. BACKGROUND
      On April 11, 2015, Patino-Almendariz, a citizen of Mexico, was arrested
by Border Patrol agents in Cameron County, Texas. This arrest occurred only
fifteen days after Patino-Almendariz had been deported on March 27, 2015.
Patino-Almendariz did not have permission to reenter the United States.
Following the April 2015 arrest, Patino-Almendariz was charged under 8
U.S.C. §§ 1326(a) and 1326(b)(1) with unlawfully reentering the United States
after having been deported for a felony conviction. On May 11, 2015, Patino-
Almendariz pleaded guilty without a plea agreement.
      A presentence report (“PSR”) was prepared for the district court based
on the 2014 edition of the Guidelines. The PSR indicated that Patino-
Almendariz had 13 total criminal history points under U.S.S.G. § 4A1.1. In
calculating these points, the PSR took into account the numerous criminal
convictions on Patino-Almendariz’s record, including convictions for driving
while intoxicated, possession of a controlled substance, and unlawful entry into
the United States. Among these prior offenses was a 2014 conviction for
unlawfully reentering the United States after having been deported for a felony
conviction. Patino-Almendariz had been sentenced to 13 months in custody for
this 2014 offense. The PSR assigned 3 points to the 2014 unlawful reentry
conviction under U.S.S.G. § 4A1.1(a). Importantly, U.S.S.G. § 4A1.1(a)
provides that 3 points should be should be added “for each prior sentence of
imprisonment exceeding one year and one month.”
      Based on these and other calculations, the PSR gave Patino-Almendariz
a total offense level of 10 and a criminal history category of VI, which resulted
in a Guidelines range of 24 to 30 months’ imprisonment. Patino-Almendariz
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did not object to the PSR, either in writing or at his sentencing hearing. The
district court adopted the PSR’s conclusions and sentenced Patino-Almendariz
to 30 months’ imprisonment and 3 years of supervised released. Patino-
Almendariz now appeals, arguing that he is entitled to resentencing because
the PSR erroneously assigned him an extra point for his 2014 unlawful reentry
conviction.
                        II. STANDARD OF REVIEW
      Because Patino-Almendariz did not object to the PSR’s calculations
during the district court proceedings, we review for plain error. United States
v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To establish plain error, the
following must be satisfied:
      (1) there must be an error or defect—some sort of [d]eviation from
      a legal rule—that has not been intentionally relinquished or
      abandoned; (2) the legal error must be clear or obvious, rather than
      subject to reasonable dispute; (3) the error must have affected the
      appellant’s substantial rights; and (4) if the above three prongs are
      satisfied, the court of appeals has the discretion to remedy the
      error—discretion which ought to be exercised only if the error
      seriously affect[s] the fairness, integrity or public reputation of
      judicial proceedings.

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(internal quotation marks omitted) (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)).
                               III. DISCUSSION
A.    First and Second Prongs
      The first and second prongs of the plain error test direct us to determine
(1) whether the district court erred and (2) whether that error was “clear or
obvious.” Id. Patino-Almendariz argues, and the Government acknowledges,
that he should only have been assigned 2 points for his April 2014 conviction
because his sentence did not exceed 13 months’ imprisonment. As discussed

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above, the Guidelines provide that 3 criminal history points should be added
“for each prior sentence of imprisonment exceeding one year and one month.”
U.S.S.G. § 4A1.1(a) (emphasis added). Because Patino-Almendariz’s prior
sentence was for one year and one month exactly, he should not have been
assigned 3 points under § 4A1.1(a); rather, he should have been apportioned
only 2 points under U.S.S.G. § 4A1.1(b). This correction would have given
Patino-Almendariz 12 total criminal history points, instead of 13, and would
have placed him in criminal history category V. U.S.S.G. ch. 5, pt. A. As a
result, the correct Guidelines range would have been 21 to 27 months, rather
than 24 to 30 months. Id. The district court certainly erred by improperly
calculating Patino-Almendariz’s Guidelines range. “As our conclusion is
reached by a straightforward application of the guidelines,” the district court’s
error was clear and obvious. United States v. Blocker, 612 F.3d 413, 416 (5th
Cir. 2010). Thus, we hold that the first two prongs of the plain error analysis
are satisfied.
B.    Third Prong
      Next, we address whether the PSR’s error affected Patino-Almendariz’s
substantial rights. To show that an error affected his substantial rights, a
defendant “must ‘show a reasonable probability that, but for the error,’ the
outcome of the proceeding would have been different.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016) (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 76 (2004)). In Molina-Martinez, the Supreme
Court held that “[w]hen a defendant is sentenced under an incorrect
Guidelines range . . . the error itself can, and most often will, be sufficient to
show a reasonable probability of a different outcome absent the error.” Id. at
1345. In the absence of any countervailing evidence, we hold that Patino-
Almendariz has established that the error in this case affected his substantial
rights. Even though the difference was slight, the error shifted Patino-
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                                  No. 15-41146
Almendariz’s Guidelines range upward and therefore subjected him to a
sentence that exceeded the correct Guidelines range. Accordingly, we hold that
the third prong of the plain error analysis is satisfied.
C.    Fourth Prong
      Even though the PSR’s miscalculation meets the first three prongs of
plain error analysis, the error falls short of meeting the fourth prong’s
requirements. “The fourth prong of plain error review is not satisfied simply
because the ‘plainly’ erroneous sentencing guideline range yields a longer
sentence than the range that, on appeal, we perceive as correct.” United States
v. Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). If the first three prongs
of the plain error analysis are met, this Court may exercise its discretion to
remedy the error “only if the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Escalante-Reyes, 689 F.3d at 419
(quoting Puckett, 556 U.S. at 135). In other words, this Court’s discretion to
correct the sentence “should be employed in those circumstances in which a
miscarriage of justice would otherwise result.” Id. at 425 (quoting United
States v. Olano, 507 U.S. 725, 736 (1993)). “The fourth prong is meant to be
applied on a case-specific and fact-intensive basis.” Puckett, 556 U.S. at 142.
      Bearing in mind that the fourth prong of plain error analysis is
concerned with preserving “the fairness, integrity or public reputation of
judicial proceedings,” Escalante-Reyes, 689 F.3d at 419 (quoting Puckett, 556
U.S. at 135), we are not convinced that vacating the district court’s sentence
would further those objectives given Patino-Almendariz’s extensive criminal
record and the relatively small discrepancy between his sentence and the
correct Guidelines range. The seriousness of Patino-Almendariz’s unlawful
reentry into the United States in April 2015 was exacerbated by the fact that
he had been deported just fifteen days earlier. Also troubling are Patino-
Almendariz’s numerous other offenses. He was convicted on three separate
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                                  No. 15-41146
occasions for driving while intoxicated, on three separate occasions for public
intoxication, and once for possession of a controlled substance. Moreover,
Patino-Almendariz has three prior convictions for unlawfully entering the
United States—in 2008, 2013, and 2014—and has an additional prior
conviction for unlawfully reentering the United States in 2014 in violation of 8
U.S.C. §§ 1326(a) and 1326(b)(1). Given these facts, we conclude that declining
to correct the district court’s error would not result in a miscarriage of justice.
                              IV. CONCLUSION
      For the above reasons, the district court’s judgment is AFFIRMED.




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