USA v. Ricardo Guerrero-Campo

Filing

UNPUBLISHED OPINION FILED. [10-50284 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 01/13/2011 for Appellant Ricardo Guerrero-Campos [10-50284]

USA v. Ricardo Guerrero-Campo Case: 10-50284

Document: 00511331460 Page: 1 Date Filed: 12/23/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50284 S u m m a r y Calendar December 23, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R I C A R D O GUERRERO-CAMPOS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:09-CR-522-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* R ic a r d o Guerrero-Campos appeals the 48-month sentence imposed fo llo w in g his guilty plea conviction for being found unlawfully in the United S t a te s after deportation in violation of 8 U.S.C. § 1326. He contends that the d is t r ic t court plainly erred when it assessed three criminal history points for his p r io r burglary and attempted rape convictions. Specifically, he argues that b e c a u s e these convictions resulted in a prior sentence of six months of im p r is o n m e n t , only two criminal history points should have been assessed
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-50284 Document: 00511331460 Page: 2 Date Filed: 12/23/2010 No. 10-50284 p u r s u a n t to U.S.S.G. § 4A1.1(b). Because Guerrero-Campos did not object to the c a lc u la t io n of his criminal history category in the district court, our review is lim it e d to plain error. See United States v. Alvarado-Santilano, 434 F.3d 794, 7 9 5 (5th Cir. 2005). I n calculating a defendant's criminal history category, § 4A1.1 directs the d is t r ic t court to add three points for each prior sentence of imprisonment e x c e e d in g one year and one month, two points for each prior sentence of at least s ix ty days not counted in subsection (a), and one point for each prior sentence n o t counted in subsections (a) or (b). § 4A1.1(a)-(c). The language of § 4A1.1 is p la in and unambiguous and does not appear to be subject to interpretation. Because the sentences imposed for Guerrero-Campos's prior burglary and a t t e m p t e d rape convictions did not exceed one year and one month, the district c o u r t committed error that was clear or obvious when it assessed three criminal h is t o r y points pursuant to § 4A1.1(a). See United States v. Leonard, 157 F.3d 3 4 3 , 345-46 (5th Cir. 1998) (finding plain error, even in the absence of controlling a u t h o r it y , where the pertinent guidelines were clear and unambiguous). H a d the district court properly applied § 4A1.1, Guerrero-Campos's c r im in a l history category would have been II instead of III. Employing a

c r im in a l history category of II and a total offense level of 21, Guerrero-Campos's g u id e lin e s imprisonment range would have been 41 to 51 months instead of 46 t o 57 months. When, as here, the sentence imposed "falls inside both the correct and in c o r r e c t guidelines ranges, we have shown considerable reluctance in finding a reasonable probability that the district court would have settled on a lower s e n te n c e ." United States v. Blocker, 612 F.3d 413, 416 (5th Cir.), cert. denied, ___ S . Ct. ___, 2010 WL 4156179 (2010) (internal quotation marks and citations o m itte d ). In such cases, "we do not assume, in the absence of additional

e v id e n c e , that the sentence affects a defendant's substantial rights." Id.

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Case: 10-50284 Document: 00511331460 Page: 3 Date Filed: 12/23/2010 No. 10-50284 T h e district court considered and rejected Guerrero-Campos's request for a downward variance and chose not to sentence him at the bottom of the g u id e lin e s range. Because Guerrero-Campos has failed to show that the district c o u r t could not impose the same sentence on remand or that there is a r e a s o n a b le probability that, but for the error, his sentence would have been lo w e r , he cannot show plain error. See id. at 416-17; United States v. Jasso, 587 F .3 d 706, 713-14 (5th Cir. 2009). Accordingly, the district court's judgment is A F F IR M E D .

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