     Case: 10-40714 Document: 00511466519 Page: 1 Date Filed: 05/04/2011




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

                                                 FILED
                                                                             May 4, 2011
                                      No. 10-40714
                                    c/w No. 10-40716                        Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EULALIO JUAREZ-RODRIGUEZ, also known as Sergio Pulidio, also known as
Eulalio Juarez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 1:10-CR-270-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Eulalio Juarez-Rodriguez appeals the 77-month sentence imposed
following his guilty plea conviction for being an alien found unlawfully in the
United States and the 21-month sentence imposed upon revocation of his
supervised release. Juarez-Rodriguez contends that his 77-month sentence
should be vacated because the district court erred by assessing a criminal history



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40714 Document: 00511466519 Page: 2 Date Filed: 05/04/2011

                            No. 10-40714 c/w 10-40716

point for his 2001 Texas conviction for failure to stop and leave information. He
contends that his 21-month revocation sentence should also be vacated because
it was formulated in combination with his 77-month sentence.
      According to Juarez-Rodriguez, his Texas conviction for failure to stop and
leave information should not have been counted because it qualified as the
enumerated offense of leaving the scene of an accident under U.S.S.G.
§ 4A.12(c)(1). Because Juarez-Rodriguez did not object on this ground in the
district court, the plain error standard of review applies. See United States v.
Jasso, 587 F.3d 706, 709 (5th Cir. 2009). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      Irrespective of whether the district court committed clear or obvious error
in assessing the criminal history point challenged by Juarez-Rodriguez, a
question we do not decide, Juarez-Rodriguez’s substantial rights were not
affected. To show an affect on his substantial rights, Juarez-Rodriguez must
demonstrate a “reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”
United States v. Blocker, 612 F.3d 413, 416 (5th Cir.), cert. denied, 131 S. Ct. 623
(2010) (internal quotation marks and citation omitted). If his conviction for
failure to stop and leave information were not assessed a criminal history point,
his guidelines range would have been 70 to 87 months of imprisonment, rather
than the range of 77 to 96 months considered by the district court at sentencing.
      Where, as here, the sentence imposed falls inside both the new guidelines
range and the guidelines range considered by the district court, “we do not
assume, in the absence of additional evidence, that the sentence affects a
defendant’s substantial rights.” Blocker, 612 F.3d at 416. Juarez-Rodriguez

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                           No. 10-40714 c/w 10-40716

asserts that the district court was inclined to sentence him leniently, noting that
it imposed a sentence for his conviction that corresponded to the bottom of the
guidelines range and that it ordered eight months of his revocation sentence to
be run concurrently to the sentence for his conviction.
      The district court considered and rejected Juarez-Rodriguez’s motion for
sentence below a guidelines range of 77 to 96 months of imprisonment, and there
is no evidence that the district court found that Juarez-Rodriguez should be
sentenced to the bottom of any guidelines range. See Blocker, 612 F.3d at 416-
17; Jasso, 587 F.3d at 714 n.11. The district court’s decision to order eight
months of Juarez-Rodriguez’s revocation sentence to be run concurrently reflects
that it found a total of 90 months of imprisonment to be appropriate. Juarez-
Rodriguez has not satisfied his burden of showing a reasonable probability that
he would have received a lesser sentence. See Blocker, 612 F.3d at 416-17.
      The district court’s judgments are AFFIRMED.




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