     Case: 10-50215 Document: 00511407859 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-50215
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

LAWRENCE MONDRAGON,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-2398-3


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Following Lawrence Mondragon’s guilty-plea convictions for one count of
conspiracy to possess, with intent to distribute, five kilograms or more of cocaine
and one count of using or carrying a firearm in relation to a crime of violence or
drug-trafficking crime, he was sentenced to the statutory minimum terms of
imprisonment and supervised release for his conspiracy conviction. For his
firearm conviction, Mondragon was sentenced to the statutory minimum term
of imprisonment, along with a five-year term of supervised release, set to run

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50215 Document: 00511407859 Page: 2 Date Filed: 03/11/2011

                                   No. 10-50215

concurrently with the five-year term of supervised release imposed for his
conspiracy conviction.
      Mondragon contends the assessment of one criminal-history point for his
prior misdemeanor conviction for criminal mischief was improper, pursuant to
Sentencing Guideline § 4A1.2(c)(1), because his criminal-mischief offense was
similar to the offense of disorderly conduct.       According to Mondragon, the
elimination of that criminal-history point would have made him eligible for the
safety-valve provision under Sentencing Guideline § 5C1.2 and 18 U.S.C.
§ 3553(f), which would have enabled the district court to disregard the 10-year
statutory minimum term of imprisonment applicable to his conspiracy
conviction.
      Because this issue was not preserved in district court, it is reviewed only
for plain error. See United States v. Hernandez-Martinez, 485 F.3d 270, 272-73
(5th Cir. 2007). To show reversible plain error, Mondragon must show a clear
or obvious error that affects his substantial rights. Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If he makes that showing, our court has discretion to
correct the error, but will generally do so only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. To show an affect on
his substantial rights, Mondragon must show a reasonable probability that, but
for an error in the district court’s application of the advisory Guidelines, he
would have received a lesser sentence. See United States v. Blocker, 612 F.3d
413, 416 (5th Cir.), cert. denied, 131 S. Ct. 623 (2010).
      Mondragon was ineligible for a safety-valve decrease regardless of his
criminal-history score because his firearm conviction established that he
possessed a firearm in connection with his drug-conspiracy offense. See 18
U.S.C. § 3553(f)(2) (court shall impose a sentence in accordance with applicable
Guidelines without regard to any statutory minimum sentence if defendant did
not “possess a firearm or other dangerous weapon . . . in connection with the
offense”); U.S.S.G. § 5C1.2(a)(2) (same). In the light of the statutory minimum

                                          2
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                                 No. 10-50215

punishments underlying his sentences, Mondragon has not shown a reasonable
probability that he would have received a lesser sentence but for the claimed
error by the district court regarding the criminal-history point assessed for his
criminal-mischief conviction.
      AFFIRMED.




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