     Case: 12-10011       Document: 00512213312         Page: 1     Date Filed: 04/18/2013




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

                                                                            FILED
                                                                           April 18, 2013

                                       No. 12-10011                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

ANTONIO URIBE–QUINTERO,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                        USDC No. 4:11-CR-00191-A-ALL


Before REAVLEY, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Uribe–Quintero appeals his sentence for revocation
of supervised release because his criminal history category was incorrectly
calculated under the Sentencing Guidelines, resulting in an incorrectly high
advisory imprisonment range. Because we conclude that this error did not
seriously affect the fairness, integrity or public reputation of judicial
proceedings, we affirm.
             I. FACTUAL AND PROCEDURAL BACKGROUND

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50675

      In 2006, Uribe–Quintero received a 37-month sentence of federal
imprisonment and three-year term of supervised release for illegal re-entry
following a deportation. After he served his federal sentence, he was deported
and ordered to remain outside the United States during his period of supervised
release. Despite this condition, in June 2011, he was found in the United States
again. He reports that he re-entered within several months after being deported
in 2009. The United States moved to revoke his supervised release and also
charged him with illegal entry after deportation.
      The advisory guideline range for Uribe–Quintero’s illegal re-entry charge
was calculated for sentencing at 70 to 87 months. Uribe–Quintero pleaded guilty
to the illegal re-entry charge and received an upward variance sentence of 100
months’ imprisonment. The court explained that “a sentence above the top of
the advisory guideline range is necessary to adequately and appropriately
address the factors that the Court should consider under 18 United States Code
Section 3553(a).” The court also stated that it would have assessed a higher
sentence on the illegal re-entry charge had it not been for the consecutive
sentence it planned to impose for the revocation of Uribe–Quintero’s supervised
release:
      As I indicated in the [illegal re-entry sentencing] I took into account
      the probability that the defendant would receive a sentence [for the
      revocation of supervised release] that would run consecutive to the
      sentence in [the illegal re-entry case] in deciding to sentence him
      only to 100 months in that case. I had—and as I indicated, had I not
      been aware of the possibility that he would receive this further
      sentence, I probably would have sentenced him to a higher term,
      higher level of imprisonment in [the illegal re-entry case].

Thus, the court indicated that, but for the revocation sentence, it would likely
have assessed a higher sentence on the illegal re-entry. Significantly, the court
did not indicate by how much it would have increased the illegal re-entry


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sentence. Later the same day, Uribe–Quintero pleaded true to allegations in the
government’s motion to revoke his term of supervised release.
      His Supervised Release Violation Report (“SRVR”) calculated an advisory
range of imprisonment for the revocation of 18 to 24 months. Uribe–Quintero
did not object to the 18-to-24 month advisory range. The court imposed a 24-
month sentence for the supervised release revocation to be served consecutively
to the 100-month sentence for illegal re-entry. The statutory maximum sentence
was also 24 months.
      Later it was determined that the SRVR’s advisory range of 18 to 24
months was incorrect.       It was calculated based on the assumption that
Uribe–Quintero fell into Criminal History Category V, when his criminal history
at the time of sentencing for the underlying offense was actually Category III.
The advisory range should have been 8 to 14 months. Uribe–Quintero timely
filed a notice of appeal.
                             II. JURISDICTION
      The district court had jurisdiction under 18 U.S.C. §§ 3231 and 3583(e).
This court has jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                              III. DISCUSSION
A.    Standard of Review
      The general rule is that a party’s failure to preserve a claim of error at
trial precludes it from raising the issue on appeal. Fed. R. Crim. P. 51(b). Rule
52(b) establishes an exception: “A plain error that affects substantial rights may
be considered even though it was not brought to the court’s attention.” Id. R.
52(b). So-called plain-error review comprises four prongs. Puckett v. United
States, 556 U.S. 129, 135 (2009); see also United States v. Olano, 507 U.S. 725
(1993). First, there must be an un-waived error or defect. Puckett, 556 U.S. at
135. Second, the legal error must be clear or obvious. Id. Third, the error must
have affected the appellant’s substantial rights. Id. Fourth, if the above three

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prongs are met, the court of appeals has the discretion to remedy the error only
if it seriously affected the fairness, integrity, or public reputation of judicial
proceedings. Id.
      a. Error
      It was error for the court to calculate the advisory sentencing range based
on Uribe–Quintero’s recalculated, rather than original, criminal history
category, as the government concedes. His Criminal History Category should
have been III, resulting in an advisory sentencing range of 8 to 14 months,
instead of Criminal History Category V with a range of 18 to 24 months.
      b. Clear Error
      The government concedes that the revocation sentencing error was clear,
satisfying the second prong of “plain-error review.”
      c. Affected Appellant’s Substantial Rights
      To affect the defendant’s substantial rights, “the defendant must
demonstrate that the error affected the outcome of the district court
proceedings.” United States v. Escalante–Reyes, 689 F.3d 415, 424 (5th Cir. 2012)
(en banc) (citing United States v. Broussard, 669 F.3d 537, 553 (5th Cir. 2012)).
In the sentencing context, an appellant can show an effect on his substantial
rights where he can 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. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). The
reasonable probability of receiving a lesser sentence occurs when the appellant
“undermine[s] [the panel’s] confidence that the district court would have
imposed the same sentence absent the error.” Escalante–Reyes, 689 F.3d at 425.
This court recently reaffirmed en banc that clear error does not automatically
warrant reversal and that plain-error review is fact-specific. Escalante–Reyes,
689 F.3d at 424.



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      A recent case lays out a set of factors that would create a presumption that
a defendant’s substantial rights have been affected:
      [A]bsent additional evidence, a defendant has shown a reasonable
      probability that he would have received a lesser sentence [thereby
      satisfying the third prong] when (1) the district court mistakenly
      calculate[d] the wrong Guidelines range, (2) the incorrect range is
      significantly higher than the true Guidelines range, and (3) the
      defendant is sentenced within the incorrect range.

United States v. Mudekunye, 646 F.3d 281, 289–90 (5th Cir. 2011); see also
United States v. Mendoza–Perez, 496 F. App’x 431, 437–38 (5th Cir. 2012) (per
curiam) (unpublished) (comparing its facts against the presumption first
mentioned in Mudekunye).
      Uribe–Quintero argues that the Mudekunye presumption suggests that he
has satisfied the third prong by receiving a sentence that is within an incorrect
range. The government argues that Uribe–Quintero cannot establish a
reasonable probability that he would have received a lower sentence; specifically,
the government argues the district court would have imposed a greater upward
variance than it did on the underlying illegal re-entry offense had it not been for
the additional sentence for revocation of supervised release.
      Uribe–Quintero argues that because the district court likely conformed
Uribe–Quintero’s sentence to the incorrect sentencing range before it, his
sentence would have been lower had the correct sentencing range been available.
The district court’s choice to sentence Uribe–Quintero to the upper bound of the
incorrect advisory range could suggest that it felt constrained by the advisory
range, and that, presented with the correct advisory range, it would have
sentenced Uribe–Quintero to its upper bound, shaving 10 months off his
revocation sentence. Alternately, the district court could instead have felt
constrained by the statutory maximum sentence of 24 months, suggesting that
Uribe–Quintero would have received that same sentence regardless of the


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advisory range used. This uncertainty undermines the court’s “confidence that
the district court would have imposed the same sentence absent the error.” See
Escalente–Reyes, 689 F.3d at 425.
      The government argues that the district court’s commentary at sentencing
indicates that it would not have meted out a lower sentence if presented with the
correct advisory range. The government relies on United States v. Davis, 602
F.3d 643, 649 n.9 (5th Cir. 2010) (“By itself, the district court’s erroneous
selection of the incorrect guideline range [wa]s not enough to demonstrate that
the substantial rights prong of the plain error test [wa]s satisfied.”) However,
Davis is inapposite. In Davis, the district court applied an incorrect 15 to 21
sentencing range, instead of the accurate 6 to 12 month range. Id. at 646.
Despite the incorrect recommendation, the court sentenced Davis to a 24-month
sentence—a term even longer than the upper bound of the higher range. Id.
Thus, for Davis, the above-mentioned Mudekunye presumption would not apply.
This court rejected Davis’s contention that his substantial rights were affected;
by sentencing Davis outside the sentencing range, the district court
demonstrated that it had independent grounds for selecting a sentence above
even the incorrect advisory range, such that Davis could not establish a
reasonable probability that his sentence would have been lower were it not for
the district court’s consideration of the incorrect advisory range. Id. at 650.
Uribe–Quintero’s sentence, by contrast, was within the incorrect advisory range.
      The government argues that the district court “accounted for the looming
revocation sentence by decreasing the sentence for the substantive offense.”
Therefore, the government states, “the record here precludes Uribe–Quintero
from establishing—as he must—that but for the error, he would have received
a lower sentence.” There are several problems with the government’s position.
First, Uribe–Quintero does not have to establish that he would have received a
lower sentence, as the government argues. His burden is lower: he must

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establish a “reasonable probability” that he would have received a lower
sentence. See Villegas, 404 F.3d at 364. Second, even if the district court would
have varied upward to a greater degree, as the government contends, it is not
clear that it would have been by the same amount of time as the reduction in the
supervised release sentence, suggesting he could have received a lower sentence.
Either way, the inquiry is conjecture, which at least undermines the court’s
confidence that the district court would have imposed the same sentence. See
Escalante–Reyes, 689 F.3d at 425 (holding that undermining the panel’s
confidence that the appellant would receive the same sentence on remand
satisfies the third prong).
      Ultimately, the government does not provide enough “additional evidence”
to override the presumption that when a defendant is sentenced within a
significantly higher incorrect range, he has established a reasonable probability
that he would have received a lesser sentence. Uribe–Quintero’s evidence at
least “undermine[s] . . . confidence that the district court would have imposed
the same sentence.” See Escalante–Reyes, 689 F.3d at 425.
      d. Discretion Based on Serious Effect to Fairness, Integrity, or Public
      Reputation of Judicial Proceedings
      Having found the first three prongs satisfied, the court may exercise its
discretion to reverse only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Puckett, 556 U.S. at 135. Notably, the
fourth prong is not automatically granted if the other three prongs are met.
Escalante–Reyes, 689 F.3d at 425. This Circuit has declined to “adopt a blanket
rule that once prejudice is found [in the third prong], the error invariably
requires correction.” United States v. Reyna, 358 F.3d 344, 352 (5th Cir. 2004)
(en banc).
      The Supreme Court has “emphasized that a per se approach to plain-error
review is flawed.” United States v. John, 597 F.3d 263, 285 (5th Cir. 2010). This

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fourth prong is meant to be case-specific and fact-intensive. Escalante–Reyes, 689
F.3d at 431.
      The specific details of Uribe–Quintero’s criminal history counsel against
reversal. See, e.g., United States v. Davis, 602 F.3d 643, 650–52 (5th Cir. 2010)
(discussing defendant’s return to criminal activities only five months into
supervised release); United States v. Jones, 489 F.3d 679, 682 (5th Cir. 2007)
(discussing criminal history and offense characteristics). He had previously
pleaded guilty to driving while intoxicated, another illegal re-entry charge, and
aggravated assault with a deadly weapon—where he attempted to stab the
victim with a knife at a convenience store. More significantly, Uribe–Quintero
admitted that after being deported and told that he could not return to the
United States during his period of supervised release, he violated his conditions
by re-entering within the same year.         Uribe–Quintero’s violation of his
conditions of supervised release so soon after beginning his term indicates that
affirming the district court’s sentence would not seriously affect the fairness,
integrity, or public reputation of judicial proceedings.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM.




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