Case: 15-20060 Document: 00513380430 Page: 1 Date Filed: 02/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20060
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 15, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee,
versus
RICARDO MARTINEZ-ESPINOZA, Also Known as Ricardo Martinez,
Also Known as Ricardo Espinosa Martinez,
Also Known as Ricardo Espinoza Martinez,
Also Known as Ricardo Martinez-Martinez,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CR-397-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Ricardo Martinez-Espinoza appeals his sentence for being an alien found
unlawfully in the United States after having been previously deported, in vio-
lation of 8 U.S.C. § 1326. For the first time on appeal, he maintains that his
criminal history score was incorrectly calculated. As he concedes, because he
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20060 Document: 00513380430 Page: 2 Date Filed: 02/15/2016
No. 15-20060
did not raise that challenge in the district court, review is for plain error only.
See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To demonstrate
plain error, he must show a clear or obvious error that affects his substantial
rights; even if he makes that showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public repute-
tion of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).
Martinez-Espinoza contends that he should not have received any crim-
inal history points under U.S.S.G. § 4A1.1(c) for his 2006 misdemeanor convic-
tion of evading arrest, for which he received only 180 days of probation, and he
further avers that he should have received only one criminal history point
under § 4A1.1(c), rather than two points under § 4A1.1(b), for his 2012 illegal-
reentry conviction, because it resulted in only a 45-day prison term. The gov-
ernment concedes the error.
Nevertheless, as the government urges, Martinez-Espinoza has not
shown that the error affected his substantial rights. Even without the two
points, Martinez-Espinoza’s criminal history remains at category V, and the
applicable guideline range of 21 to 27 months is unchanged. See U.S.S.G.
Ch. 5, Pt. A (Sentencing Table); see also United States v. Garcia-Gonzalez,
714 F.3d 306, 317 (5th Cir. 2013). Although Martinez-Espinoza claims that
the district court based its sentence on the erroneous belief that he had
attained the highest number of criminal history points under category V, the
record indicates that the court imposed a high-end guideline sentence because
of the seriousness and escalation of Martinez-Espinoza’s criminal history,
which included drug offenses, two deportations, and a recent firearms offense.
Thus, Martinez-Espinoza cannot show a reasonable probability that, but
for the criminal-history computation error, he would have received a lesser
sentence. See United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015).
2
Case: 15-20060 Document: 00513380430 Page: 3 Date Filed: 02/15/2016
No. 15-20060
Consequently, he has not demonstrated any reversible plain error. See Puck-
ett, 556 U.S. at 135.
The judgment of sentence is AFFIRMED.
3