     Case: 15-41123      Document: 00513885955         Page: 1    Date Filed: 02/22/2017




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

                                    No. 15-41123                                FILED
                                  Summary Calendar                       February 22, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA

                     Plaintiff-Appellee

v.

JOSE DAVID HERNANDEZ, also known as Jose David Hernandez-Perez

                     Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:14-CR-1121-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       A few months ago, a divided panel of this court denied an unopposed
motion by the government to vacate and remand this appellant’s sentence
based on plain error as to the calculation of his criminal history. 1 At that time,
the panel observed that the government had not even attempted to brief 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

       1 The appellant’s additional facial challenge to the constitutionality of 18 U.S.C.
§ 16(b) has been foreclosed by United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir.
2016) (en banc), pet. for cert. filed Sept. 29, 2016.
     Case: 15-41123       Document: 00513885955          Page: 2     Date Filed: 02/22/2017


                                       No. 15-41123

fourth prong of plain error review, i.e., whether this court’s failure to correct
the error “seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” United States v. Castaneda, 740 F.3d 169, 171 (5th Cir.
2013). Although the government, in filing its brief on the merits, alleges the
fourth prong is fulfilled, we are not persuaded and AFFIRM the sentence. 2
       This appellant has a lengthy history of encounters with law enforcement,
including an assault on a female that was properly counted in his criminal
history. More recently, he has continued to enter the United States illegally
and been indicted for welfare fraud. These events no doubt influenced the
district judge in her statement that a sentence “at the high end” of an
admittedly slightly higher sentencing range (24-30 months rather than 18-24
months) was “appropriate.”
       Because federal sentencing has been in an ongoing turmoil in the past
few years, consideration of this appeal was delayed for the outcome of
Gonzalez-Longoria. In the meantime, the appellant has been serving time on
the slightly higher sentence and is due for release on March 22, 2017. So, not
only could this appellant’s case have been handled better had the appropriate
objection to the criminal history score been raised at sentencing instead of for
the first time on appeal, but now any relief we could conceivably award comes
close to being moot because of his soon-impending release. Authority in this
court goes both ways on the propriety of exercising our discretion to order
resentencing when an error has resulted in, at most, a few months higher
sentence. United States v. Davis, 602 F.3d 643, 646 (5th Cir. 2010) (declining
to exercise discretion where a 15 to 21 month range was incorrect and a 6 to

       2 One facet of appellant’s criminal history argument, it should be noted, is not “plain”
error: he has raised the purely factual issue of the length of a prior sentence by submitting
evidence for the first time on appeal. See United States v. Lee, 368 F.App’x. 548, 553 (5th
Cir. 2010) (refusing to consider factual evidence available to defendant in trial court but not
offered until appeal).


                                              2
    Case: 15-41123     Document: 00513885955     Page: 3   Date Filed: 02/22/2017


                                  No. 15-41123

12 month range was appropriate); United States v. Avalos-Martinez, 700 F.3d
148, 154 (5th Cir. 2012) (declining to exercise discretion over a one month
where a 70 to 87 month range was incorrect and a 57 to 71 month range was
appropriate); United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)
(exercising discretion where a 21 to 27 month range was incorrect and a 10 to
16 month range was appropriate). Under these circumstances, however, which
include the totality of the appellant’s criminal history and the unavoidable
delays in handling the appeal, our failure to correct the error in no way reflects
on the fairness, integrity or public reputation of the judicial proceedings.
AFFIRMED.




                                        3
