    Case: 17-11433     Document: 00514745905     Page: 1   Date Filed: 12/03/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                  No. 17-11433                United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                              December 3, 2018
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


                                            Plaintiff–Appellee,

versus

JOSE NINO-CARREON,

                                            Defendant–Appellant.




               On Appeal from the United States District Court
                     for the Northern District of Texas




Before SMITH, BARKSDALE, and HO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Jose Nino-Carreon pleaded guilty of illegal reentry after removal and
was sentenced to fifty months’ imprisonment. He appeals his sentence, assert-
ing that the district court plainly erred in assessing criminal history points for
three convictions occurring in 2003 and 2004. He maintains that the court
determined that the earliest date of his offense and relevant conduct was Aug-
ust 17, 2016, the date he was apprehended by immigration authorities, and
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                                  No. 17-11433
consequently, that the earlier convictions should not have been scored because
the sentence in each was imposed more than ten years before that date. See
U.S.S.G. § 4A1.2(e)(2). Though Nino-Carreon is correct that the district court
erred in scoring those three convictions, he has not demonstrated that the error
affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). Therefore, we affirm.

                                         I.
      We review this issue for plain error because Nino-Carreon failed to object
to the computation of his criminal history score in the district court. See United
States v. Carlile, 884 F.3d 554, 556 (5th Cir. 2018). Nino-Carreon must satisfy
three hurdles before this court may exercise its discretion to correct plain error.
First, “there must be an error or defect . . . that has not been intentionally re-
linquished or abandoned . . . by the appellant.” Puckett, 556 U.S. at 135. Sec-
ond, “the legal error must be clear or obvious, rather than subject to reasonable
dispute.” Id. Third, “the error must have affected the appellant’s substantial
rights.” Id. If Nino-Carreon satisfies these three conditions, “the court of
appeals should exercise its discretion to correct the forfeited error if the error
‘seriously affects the fairness, integrity or public reputation of judicial proceed-
ings.’” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).

                                        II.
      As Nino-Carreon acknowledges, his criminal history category of VI re-
mains unchanged so long as the district court correctly assessed a criminal
history point for one of the three contested convictions. The most recent sen-
tencing date is December 1, 2004. Therefore, he must have entered the United
States on or before December 1, 2014, when the ten-year limitations period
expired, for the district court not to have erred.
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                                 No. 17-11433
      Nino-Carreon contends that this court must use the date he was appre-
hended in the United States, August 17, 2016, as his earliest offense date. But
“when determining whether a prior conviction meets the time-period require-
ment for assessing criminal history points under § 4A1.2(e), the triggering date
is that of the defendant’s illegal reentry, not the date on which the defendant
was found by immigration authorities in the United States.” United States v.
Ponce, 896 F.3d 726, 728 (5th Cir. 2018). Thus, Nino-Carreon’s assertion is
meritless.

      Nevertheless, contrary to the government’s claims, the record does not
support a finding that Nino-Carreon reentered the United States between his
December 30, 2012, deportation and December 1, 2014.           The Presentence
Report (“PSR”) states that Nino-Carreon (1) worked as a roofer in Texas from
2015 to 2016 and (2) was in a relationship with his girlfriend, an alleged U.S.
resident who lived in Fort Worth, “for two years” before his August 29, 2017,
PSR interview. Consequently, nothing in the PSR points to a date of reentry
earlier than 2015.    The government’s assertion that the probation officer
“implicitly found” that the December 1, 2004, sentence occurred “within ten
years of [Nino-Carreon’s] most recent illegal reentry,” contrary to the PSR’s
explicit statement that his “earliest offense date, including relevant conduct[,]
is August 17, 2016,” is unavailing. Therefore, Nino-Carreon has satisfied the
first two plain-error prongs: There was an error that was not intentionally
relinquished or abandoned, and the error was clear based on the evidence con-
tained in the PSR.

      To satisfy the third prong, “the defendant ordinarily must ‘show a rea-
sonable probability that, but for the error, the outcome of the proceeding would
have been different.’” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–
05 (2018) (quoting Molina-Martinez, 136 S. Ct. at 1343). “When a defendant is

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                                  No. 17-11433
sentenced under an incorrect Guidelines range—whether or not the defen-
dant’s ultimate sentence falls within the correct range—the error itself can,
and most often will, be sufficient to show a reasonable probability of a different
outcome absent the error.” Molina-Martinez, 136 S. Ct. at 1345. But “[t]here
may be instances when, despite application of an erroneous Guidelines range,
a reasonable probability of prejudice does not exist.” Id. at 1346. For example,
“[j]udges may find that some cases merit a detailed explanation of the reasons
the selected sentence is appropriate [and] [t]hat explanation could make it
clear that the judge based the sentence . . . on factors independent of the
Guidelines.” Id. at 1346–47.

      That is the case here. There is no reasonable probability that Nino-
Carreon’s sentence would have been different had the district court used the
correct range. Even before the sentencing hearing, the court expressed a “ten-
tative conclusion that the defendant should receive a sentence of imprisonment
significantly above the top of the advisory guideline range.” During the hear-
ing, the court emphasized Nino-Carreon’s criminal history through a compre-
hensive recitation filling six transcript pages. The court devoted particular
attention to Nino-Carreon’s two 2016 assaults resulting in bodily injury on a
family member, describing in detail what he had done. The court added, “And
I have concluded a sentence of imprisonment of 50 months is absolutely nec-
essary to satisfy those [sentencing] factors.” In its statement of reasons, the
court specified that those factors were “the history and characteristics of the
defendant, the nature and circumstances of the offense, . . . [the need for the
sentence imposed to reflect] the seriousness of the offense[,] to promote respect
for the law, and [to] protect the public from further crimes by the defendant.”

      The district court’s statements thus substantiate that there is no reason-
able probability that Nino-Carreon’s sentence would have been different had

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the court used the correct guideline range of 21 to 27 months instead of 24 to 30
months. The court provided “a detailed explanation of the reasons the selected
sentence is appropriate” and made “clear that the [court] based the sen-
tence . . . on factors independent of the Guidelines.” Id. Consequently, Nino-
Carreon has not demonstrated that the error affected his substantial rights,
and we have no need to address the fourth prong.

      The judgment of sentence is AFFIRMED.




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