     Case: 14-40514      Document: 00513078881         Page: 1    Date Filed: 06/15/2015




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

                                      No. 14-40514                            FILED
                                                                          June 15, 2015
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                                 Plaintiff-Appellee

v.

MARIO TULIO DE SANTIAGO-GUILLEN, also known as Marco De Santiago,
also known as Marco Guillen-Desantiago, also known as Marco T. De Santiago,
also known as Mario De Santiago-Guillen,,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:13-CR-1128-1


Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
       Mario Tulio De Santiago-Guillen pleaded guilty to one count of illegal
reentry into the United States and was sentenced to serve 77 months in prison
and a three-year term of supervised release. He argues that the district court
plainly erred when calculating his criminal history. Additionally, he asserts
that this error affected his substantial rights because there is at least a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40514

reasonable probability that he would have received a lesser sentence absent
this error, as evidenced by the fact that he received a sentence at the bottom
of the guidelines range even though the PSR suggested an upward departure
could be warranted.
      As De Santiago-Guillen concedes, his challenge to the district court’s
guidelines calculation is reviewed for plain error because he failed to present
it to the district court. See United States v. Jasso, 587 F.3d 706, 709 (5th Cir.
2009). To demonstrate plain error, De Santiago-Guillen must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we
have the discretion to correct the error but will do so only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See Id.
      De Santiago-Guillen’s assertion that he should not have been assigned
criminal history points based on his 2007 conviction for driving without a
license is correct and satisfies the first two prongs of the plain error test. See
U.S.S.G. § 4A1.2(c)(1); United States v. Blocker, 612 F.3d 413, 417 (5th Cir.
2010). He is not, however, entitled to relief, as he has not shown that the error
affected his substantial rights.
      An error in calculating the defendant’s guidelines range affects his
substantial rights when there is a reasonable probability that the defendant
would have received a shorter sentence if the district court had properly
applied the Guidelines. United States v. Mudekunye, 646 F.3d 281, 289 (5th
Cir. 2011). When the sentence imposed falls in both the correct guidelines
range and the incorrect guidelines range used by the district court, “we have
shown considerable reluctance in finding a reasonable probability that the
district court would have settled on a lower sentence.” Blocker, 612 F.3d at
416 (internal quotation marks and citation omitted). This is what happened



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                                  No. 14-40514

here, as De Santiago-Guillen’s 77-month sentence falls in both the incorrect
77-96 month range and the correct 70-87 month range.
      Review of the record does not show that the incorrectly calculated range
“was a primary factor in the selection of” De Santiago-Guillen’s 77-month
sentence. United States v. Pratt, 728 F.3d 463, 482 (5th Cir. 2013), cert. denied,
134 S. Ct. 1328 (2014). Instead, this review shows only that “that the district
court, when faced with a Guideline Range of [77-96] months, concluded it
would be reasonable to place the defendant at the bottom of that range.”
United States v. Jasso, 587 F.3d 706, 714 n.11 (5th Cir. 2009). There is no
indication that the district court believed that the bottom of “any range [was]
appropriate.” Id. Accordingly, the plain error standard has not been met.
      AFFIRMED.




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