IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2013
No. 12-50106
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO BAEZA-LOZANO,
Defendant-Appellant
Cons. w/ No. 12-50120
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FRANCISCO BAEZA-LOZANO, also known as Francisco Baeza,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:11-CR-303-1
USDC No. 7:06-CR-220-1
No. 12-50106
c/w No. 12-50120
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Francisco Baeza-Lozana (Baeza) pleaded guilty to illegal reentry following
deportation and was sentenced to 96 months of imprisonment and three years
of supervised release. At the time of the offense, Baeza was under supervised
release for 2007 conviction for heroin distribution in violation of 21 U.S.C.
§ 841(b)(1)(C). Immediately following the proceedings in the illegal reentry case,
the district court revoked Baeza’s supervised release and sentenced him to 24
months of imprisonment and three years of supervised release. Baeza appeals
both sentences. The appeals have been consolidated.
For the first time on appeal, Baeza argues that the district court
procedurally erred when it ordered that his sentence for the illegal reentry run
consecutively to the sentence that the court had not yet imposed on the
revocation. Citing 18 U.S.C. § 3584(a) and United States v. Quintana-Gomez,
521 F.3d 495, 498 (5th Cir. 2008), he argues that the district court may impose
consecutive sentences only where the sentences are imposed at the same time,
or where the defendant already has been sentenced in an earlier case.
We review Baeza’s argument for plain error only. To show plain error,
Baeza must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
demonstrate that a sentencing error affected his substantial rights, Baeza must
show that it affected the outcome in the district court. See United States v.
Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009). If he makes such a
showing, this court has the discretion to correct the error but only if it seriously
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-50106
c/w No. 12-50120
affects the fairness, integrity, or public reputation of judicial proceedings. See
Puckett, 556 U.S. at 135.
The facts of the instant case are distinguishable from those in Quintana-
Gomez because the instant case involved the same sentencing judge and back-to-
back sentencing proceedings. However, even assuming that this court’s holding
in Quintana-Gomez shows that the district court erred, Baeza cannot show that
the district court’s error affected his substantial rights because immediately
after the district court imposed the 96-month illegal reentry sentence, it
sentenced Baeza to 24 months of imprisonment on the revocation offense, and
it ordered that the revocation sentence run consecutively to the already imposed
illegal-reentry sentence. Accordingly, Baeza cannot make the showing required
to obtain relief under the plain error standard of review. See Mondragon-
Santiago, 564 F.3d at 369.
Baeza also challenges his revocation sentence, arguing that the sentence
of 24 months of imprisonment and three years of supervised release exceeds the
statutory maximum allowed by 18 U.S.C. § 3583(b). When a defendant’s
supervised release is revoked and the district court sentences the defendant to
a term of imprisonment followed by a term of supervised release, the term of
supervised release “shall not exceed the term of supervised release authorized
by statute for the offense that resulted in the original term of supervised release,
less than any term of imprisonment that was imposed upon revocation of
supervised release.” § 3583(h). Despite Baeza’s failure to object to the term of
supervised release in the district court, his argument that the sentence exceeds
the statutory maximum merits de novo review. See United States v. Vera, 542
F.3d 457, 459 (5th Cir. 2008) (noting that a sentence which exceeds the statutory
maximum constitutes plain error subject to de novo review).
The Government agrees that a sentencing court must aggregate the
imprisonment term with the supervised release term; however, it challenges
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c/w No. 12-50120
Baeza’s contention that the maximum term of supervised release available for
the aggregate term was three years. The Government’s argument has merit. In
United States v. Jackson, 559 F.3d 368, 370 (5th Cir. 2009), this court held that
following the amendment of § 841(b)(1)(C) in 2002, the “general maximums of
§ 3583(b) do not apply to revocation sentencing when the original offense was a
conviction under § 841(b)(1)(C).” Id. at 372.
Baeza next argues that the district court plainly erred in ordering that his
revocation sentence run consecutively to the illegal reentry sentence. He argues
that the district court failed to state its reasons for imposing the consecutive
sentence in open court during the revocation proceedings. He alternatively
argues that this court can reasonably infer that the district court relied upon the
reasons it gave during the illegal reentry proceedings in electing to run the
revocation sentence consecutively, and that those reasons made reference to two
sentencing factors that are patently improper in revocation cases. Because
Baeza did not object to the district court’s revocation sentence based on the
foregoing, we review this argument for plain error. See United States v. Davis,
602 F.3d 643, 646-47 (5th Cir. 2010).
Under 18 U.S.C. § 3553(c), a district court must state “in open court” the
reasons for imposing a particular sentence. This articulation requirement also
applies to a district court’s decision whether to impose a consecutive or
concurrent sentence. United States v. Gore, 298 F.3d 322, 325 (5th Cir. 2002).
However, the failure to articulate oral reasons does not warrant relief under the
plain error standard of review where the appellant fails to establish an effect on
his substantial rights. See id. & n.2. Baeza makes no showing that the court’s
omission affected his substantial rights. Accordingly, he has not met the
showing required under the plain error standard. See Mondragon-Santiago, 564
F.3d at 364. Moreover, we reject Baeza’s assertion that we should infer that the
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No. 12-50106
c/w No. 12-50120
reasons given during the prior illegal reentry proceedings were intended to
support the revocation sentence
Finally, Baeza correctly notes that the order revoking his supervised
release contains two clerical errors because it twice refers to the date of his
original judgment as January 23, 2009, rather than May 2, 2007. Accordingly,
we remand the case to the district court for correction of the clerical errors
pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 36. See United States v.
Powell, 354 F.3d 362, 371 (5th Cir. 2003).
AFFIRMED and REMANDED
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