     Case: 14-40137      Document: 00513015082         Page: 1    Date Filed: 04/22/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40137
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 22, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

HERIBERTO TELLEZ-MEZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-345-1


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Heriberto Tellez-Meza (Tellez) appeals his 30-month sentence, which
was an upward variance from the guidelines range, following his guilty plea
conviction for illegal reentry. Tellez argues that the district court varied from
Federal Rule of Criminal Procedure 32 because in failing to provide him notice
of information that it would rely on to vary upward, it denied him an
opportunity to comment on sentencing matters.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40137     Document: 00513015082      Page: 2   Date Filed: 04/22/2015


                                  No. 14-40137

      Because Tellez did not sufficiently alert the district court to the nature
of the alleged Rule 32 violations he argues on appeal, we review the district
court’s compliance with Rule 32 for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Wooley, 740 F.3d 359, 367 (5th Cir.
2014). Under plain error review, Tellez has the burden of showing 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, this
court has the discretion to correct the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. at 135.
      Tellez fails to show that the district court varied from Rule 32 because
Tellez was allowed to comment on the information on which the district court
based its sentence. Even if, for the sake of argument, the district court varied
from Rule 32 as Tellez alleges, he cannot show that the district court’s alleged
variance affected the fairness of the proceedings, given that the Marshals’
Field Report contained in the Presentence Report (PSR) identified Tellez as an
assailant in the beating and Tellez did not rebut the PSR.
      Tellez also argues that the district court procedurally erred because it
did not resolve the factual dispute regarding whether he acted in self-defense
in the gang incident, as was required by U.S.S.G § 6A1.3 (p.s.) and Federal
Rule of Criminal Procedure 32(i)(3)(B). We need not reach whether Tellez
preserved this issue because he fails to show that the district court committed
error, plain or otherwise. See Puckett, 556 U.S. at 135. Tellez’s contention is
belied by the record, which reflects that the district court informed Tellez that
the evidence did not support his contention that Rosales assaulted him first.
      Accordingly, Tellez’s sentence is AFFIRMED.




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