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United States v. Rosales-Mireles

United States Court of Appeals, Fifth Circuit

March 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
FLORENCIO ROSALES-MIRELES, Also Known as Roberto Lozano-Alcauter, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Texas

          Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Florencio 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.

         I.

         Rosales-Mireles 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 months.

         Rosales-Mireles 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 imposed.

         II.

         Rosales-Mireles 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 alterations omitted).

         A.

         The 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."[1] Thus, Rosales-Mireles satisfies the first two prongs.

         B.

         To 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."[2] "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 alteration adopted).

         Had the 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 the ...


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