from the United States District Court for the Western
District of Texas
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
E. SMITH, Circuit Judge:
Rosales-Mireles appeals his sentence for illegal reentry. He
contends that the district court erred by counting one of his
prior convictions twice when calculating the
sentencing-guideline range. He also maintains that the
sentence is substantively unreasonable. Finding no reversible
error, we affirm.
pleaded guilty of illegal reentry in violation of 8 U.S.C.
§ 1326(a) and (b)(2). When calculating the
criminal-history score, the probation officer counted a 2009
Texas conviction of misdemeanor assault twice, assessing two
criminal-history points each time it was counted. The total
criminal-history score was calculated as 13, resulting in a
criminal-history category of VI. Combined with
Rosales-Mireles's offense level of 21, that
criminal-history category yielded a guideline range of 77-96
did not object to the double-counting but did request a
downward departure to 41 months. The district court denied
the departure and sentenced Rosales-Mireles to 78 months of
imprisonment and a three-year term of supervised release.
Rosales-Mireles did not object to the sentence after it was
assigns error to the double-counting. He concedes that he did
not make that objection in district court, so we apply the
plain-error standard. See United States v. Peltier,
505 F.3d 389, 391 (5th Cir. 2007). To establish plain error,
Rosales-Mireles must show (1) an error; (2) that was clear or
obvious; and (3) that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009).
"[I]f the above three prongs are satisfied, [we have]
the discretion to remedy the error-discretion which
ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings." Id. (quotation marks and
government concedes that the double-counting is error, and we
agree. The sentencing guidelines provide that two
criminal-history points be added "for each
prior sentence of imprisonment of at least sixty days . . .
." U.S. Sentencing Guidelines Manual
("U.S.S.G.") § 4A1.1 (emphasis added). By
adding four points based on the same conviction, the court
erred. Moreover, "the error is clear from the language
of the Guidelines." Thus, Rosales-Mireles satisfies the
first two prongs.
satisfy the third prong, Rosales-Mireles must show "a
reasonable probability that, but for the district court's
misapplication of the Guidelines, he would have received a
lesser sentence." "When a defendant is sentenced under
an incorrect Guidelines 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]he
Government remains free to point to parts of the
record-including relevant statements by the judge-to counter
any ostensible showing of prejudice the defendant may
make." Id. at 1347 (quotation marks omitted and
district court not erred by double-counting
Rosales-Mireles's misdemeanor-assault conviction, the
guideline range would have been 70-87 months instead of 77-96
months as recommended in the presentence report. Nonetheless,
the government contends that the court would have sentenced
Rosales-Mireles to the same term of imprisonment even if it
had not erred by double-counting. The government notes that