     Case: 17-40522      Document: 00514641692         Page: 1    Date Filed: 09/14/2018




                      REVISION September 14, 2018

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

                                      No. 17-40522                                FILED
                                                                          September 13, 2018
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

                                                 Plaintiff-Appellee

v.

MARTIN TERAN-CONTRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:17-CR-33-1


Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
                         ON PETITION FOR REHEARING
       The appellant’s petition for panel rehearing is granted. The prior panel
opinion, United States v. Teran-Contreras, No. 17-40522 (5th Cir. 2018), is
withdrawn, and the following opinion is substituted:




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40522

      Martin Teran-Contreras pleaded guilty to being found in the United
States after being removed previously, in violation of 8 U.S.C. § 1326(a) and
(b). At sentencing, the district court imposed an upward departure based on
substantial underrepresentation of Teran-Contreras’s criminal history.         In
giving its reasons for the departure, the district court referred to Teran-
Contreras’s serious criminal history, including an offense originally charged as
robbery with a deadly weapon. On appeal, Teran-Contreras contends that the
district court violated his due process rights by relying on allegations taken
from the robbery indictment, given that he ultimately pleaded guilty to second-
degree robbery, which does not have as an element the use of a deadly weapon.
      “Generally, this Court reviews the district court’s application of the
Sentencing Guidelines de novo.” United States v. Nesmith, 866 F.3d 677, 679
(5th Cir. 2017) (quoting United States v. Garcia-Perez, 779 F.3d 278, 281 (5th
Cir. 2015)). However, if an objection was not sufficiently raised in the district
court, this court reviews for plain error only. See United States v. Hernandez,
690 F.3d 613, 620 (5th Cir. 2012). “The purpose of requiring defendants to
make timely objections to the PSR and actual sentence is ‘founded upon
considerations of fairness to the court and to the parties and of the public
interest in bringing litigation to an end after fair opportunity has been afforded
to present all issues of law and fact.’” United States v. Ocana, 204 F.3d 585,
589 (5th Cir. 2000) (quoting United States v. Ruiz, 43 F.3d 985, 988 (5th Cir.
1995)). Thus, “[a] party must raise a claim of error with the district court in
such a manner so that the district court may correct itself and thus, obviate
the need for our review.” United States v. Bullard, 13 F.3d 154, 156 (5th Cir.
1994).
      Teran-Contreras contends that he preserved the argument urged on
appeal because: (1) he objected in writing that “no reliable information



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                                  No. 17-40522

indicates that the criminal history category fails to adequately reflect the
seriousness of [his] past criminal conduct or the likelihood that he will commit
other crimes”; (2) counsel objected at sentencing that the district court was
relying on “incidents” that were “just allegations”; and (3) “Teran-Contreras
himself objected that there was no weapon.”         However, Teran-Contreras’s
written objection was too vague to give the trial court a reasonable opportunity
to address the alleged error. See, e.g., United States v. Chavez-Hernandez, 671
F.3d 494, 497-98 (5th Cir. 2012). Counsel’s objection at sentencing did not
fairly encompass the argument made on appeal and thus was not clearly
sufficient to give the district court the opportunity to “correct itself.” Bullard,
13 F.3d at 156. Finally, though Teran-Contreras, who was represented by
counsel, relies on statements that he himself made at the sentencing hearing,
he does not explain why this court should consider these pro se statements an
objection. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009)
(finding that defendant with counsel did not preserve argument for appeal
where he “challenged the district court’s ruling . . . only in [a] pro se motion he
filed following his revocation hearing”). To the extent he relies on a permissive
hybrid-representation theory, Teran-Contreras has failed to sufficiently brief
this argument. See SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 784 (5th
Cir. 2017) (inadequately briefed arguments are forfeited). Accordingly, we find
that Teran-Contreras did not preserve his due process argument. See Nesmith,
866 F.3d at 679; Chavez-Hernandez, 671 F.3d at 497.
      Consequently, we review his claim for plain error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). To show plain error, Teran-Contreras must
show a forfeited error that is clear or obvious and that affected his substantial
rights. See id. If he makes such a showing, this court has the discretion to
correct the error but only if it “seriously affect[s] the fairness, integrity or



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                                  No. 17-40522

public reputation of judicial proceedings.” Id. (internal quotation marks and
citations omitted).
      Even if we were to assume the district court committed a clear or obvious
error by relying on allegations from an indictment, Teran-Contreras would not
be entitled to relief because he cannot demonstrate that any error affected his
substantial rights. See Puckett, 556 U.S. at 135. The district court’s decision
to upwardly depart was based primarily on Teran-Contreras’s significant
history of unadjudicated charges and arrests for violent offenses. See, e.g.,
United States v. Fuentes, 775 F.3d 213, 219-20 (5th Cir. 2014) (considering the
facts underlying prior arrests). Moreover, the district court’s stated concern
with respect to the robbery offense was its violent nature. Teran-Contreras
was ultimately convicted of second-degree robbery, which is committed by, in
the course of committing theft, “intentionally, knowingly, or recklessly
caus[ing] bodily injury to another; or . . . intentionally or knowingly
threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.”
TEX. PENAL CODE § 29.02(a). For purposes of the district court’s inquiry, the
distinction between the charged offense and the offense of conviction is of little
significance, as second-degree robbery is also a serious and violent crime.
Thus, Teran-Contreras cannot demonstrate that, absent error, there is a
reasonable probability that he would have received a different sentence. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016).           He has
therefore failed to show reversible plain error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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