     Case: 09-10467     Document: 00511033323          Page: 1    Date Filed: 02/23/2010




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

                                                  FILED
                                                                          February 23, 2010
                                     No. 09-10467
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE ESPARZA-MONTANES, also known as Oscar Herrera-Herrera, also
known as Oscar Rivera, also known as Javier Lopez-Ortega,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-163-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jose Esparza-Montanes (Esparza) appeals the 60-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation.
Esparza challenges the district court’s decision to depart upward from criminal
history category VI pursuant to U.S.S.G. § 4A1.3, arguing that the district court
failed to explain why it bypassed intermediate offense levels or state what




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10467   Document: 00511033323 Page: 2       Date Filed: 02/23/2010
                                No. 09-10467

offense level or guidelines range it found to be appropriate and thus failed to
follow § 4A1.3(a)(4)(B).
      Esparza’s objections below did not preserve the errors he raises on appeal.
Cf. United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009); F ED. R. C RIM.
P. 51(b). Esparza does not argue, and there is nothing in the record to show,
that had the district court expressly applied the incremental approach, it could
not have imposed the same sentence or that Esparza would have received a
lesser sentence. See United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006).
Thus, Esparza’s substantial rights were not affected. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009).
      AFFIRMED.




                                        2
