Case: 09-10467 Document: 00511033323 Page: 1 Date Filed: 02/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 23, 2010
No. 09-10467
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ESPARZA-MONTANES, also known as Oscar Herrera-Herrera, also
known as Oscar Rivera, also known as Javier Lopez-Ortega,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-163-1
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Jose Esparza-Montanes (Esparza) appeals the 60-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation.
Esparza challenges the district court’s decision to depart upward from criminal
history category VI pursuant to U.S.S.G. § 4A1.3, arguing that the district court
failed to explain why it bypassed intermediate offense levels or state what
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10467 Document: 00511033323 Page: 2 Date Filed: 02/23/2010
No. 09-10467
offense level or guidelines range it found to be appropriate and thus failed to
follow § 4A1.3(a)(4)(B).
Esparza’s objections below did not preserve the errors he raises on appeal.
Cf. United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009); F ED. R. C RIM.
P. 51(b). Esparza does not argue, and there is nothing in the record to show,
that had the district court expressly applied the incremental approach, it could
not have imposed the same sentence or that Esparza would have received a
lesser sentence. See United States v. Jones, 444 F.3d 430, 438 (5th Cir. 2006).
Thus, Esparza’s substantial rights were not affected. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009).
AFFIRMED.
2