### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 40324

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. SAUL MOLINA

- MARTINEZ,
Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:12

- CR

- 848

- 1

Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit Judges

. PER CURIAM: * Saul Molina

- Martinez pleaded guilty, without the benefit of a plea agreement, to being illegally present in the United States following deportation , having been convicted of an aggravate d felony

. 8 U.S.C. §§ 1326(a), (b). The district court sentenced Molina

- Martinez to 77 months in prison, at the bottom of the 77 to 96 month Sentencing G uidelines range set

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 17, 2014 Lyle W. Cayce Clerk Case: 13-40324 Document: 00512874118 Page: 1 Date Filed: 12/17/2014No. 13

- 40324 forth in the presentence report, and to a three

- year term of supervised release. For the first time on appeal, Molina

- Martinez argues that the district court erred in calculating his criminal history category , and that the correct G uidelines range should have been 70 to 87 months. Because he did not object on this ground in the distr ict court, we review the claim for plain error. See United States v. Mudekunye , 646 F.3d 281, 289 (5th Cir. 2011). Molina

Martinez must show a n error that is clear or obvious and that affects his substantial rights. See Puckett v. United States , 556 U.S . 129, 135 (2009). If he makes such a showing, we have the discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. Under the Sentencing Guidelines, prior sentences are counted as a single sentence if they were imposed on the same day, unless the “offenses . . . were separated by an intervening arrest ( i.e. , the defendant is arrested for the first offense prior to committing the second offense).” U.S.S.G. § 4A1.2(a)(2). Molina

- Martinez committed four aggravated burglaries in Tennessee in May 2009, and he committed a fifth aggravated burglary and a theft in May 2010

. H is first arrest for any of these offenses occurred in June 2010. The probation officer imposed a total of nine criminal history points for three of these offenses pursuant to U.S.S.G. § 4A1.1(a) and two additional points for the uncounted offenses under § 4A1.1(e) , resulting in a t otal of 18 criminal history points and a criminal history category of VI. However, because there was no intervening arrest between the Tennessee burglaries, Molina

- Martinez should have received only a total of 12 criminal history points, which results in a criminal history category of V. The correct calculation would have reduced Molina

Martinez’ s G uidelines range from 77

– 96 months to 70

– 87 months. The government concedes this error. Molina

- Martinez therefore has shown a plain

2 Case: 13-40324 Document: 00512874118 Page: 2 Date Filed: 12/17/2014No. 13

- 40324 or obvious error in the cr iminal history calculation. See Puckett , 556 U.S. at 135. Molina

- Martinez has not, however, established that the error affected his substantial rights. Molina

- Martinez must “show a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.” United States v. Garcia

- Carrillo , 749 F.3d 376, 379 (5th Cir. 2014) (internal quotation marks and citation omitted). 1 The district court imposed a prison sentence of 77 months, which is at the bottom of the G uidelines range applied by the court and in the middle of the properly calculated range. “[W] hen the correct and incorrect ranges overlap and the defendant is sentenced within the overlap , ‘we do not assume, in the absence of additional ev idence, that the sentence affects a defendant’s substantial rights.’” Mudekunye , 646 F.3d at 2 90 (emphasis in original) (quoting United States v. Blocker , 612 F.3d 413, 416 (5th Cir. 2010))

. Thus, because his sentence fell within both the correct and inc orrect G uidelines range, Molina

Martinez acknowledges that our controlling caselaw obliges him to point to “additional evidence” in the record, other than the difference in ranges, to show an effect on his substantial rights. United States v. Pratt , 728 F .3d 463, 481

– 82 (5th Cir. 2013). R ecord evidence that the G uidelines range was a “primary factor” in sentencing may be sufficient “additional evidence.” Id. at 482. In Pratt , the district court affirmatively stated on the record that it felt a within

Guidelines sentence was appropriate and that it was choosing a sentence in

1 Although Molina

- Martinez contends that an error in the G uidelines calculations shou ld be considered presumptively prejudicial, he concedes that the issue is foreclosed by our precedent and raises the argument only to preserve it for further review. 3 Case: 13-40324 Document: 00512874118 Page: 3 Date Filed: 12/17/2014No. 13

- 40324 the middle of the Guidelines range; we noted that this was evidence that the Guidelines range was a primary factor in sentencing. Id. 2 Molina

- Martinez has not shown a dditional evidence that the sentence affected his substantial rights. The mere fact that the court sentenced Molina

Martinez to a low

- end sentence is insufficient on its own to show that Molina

Martinez would have received a similar low

- end sentence had t he district court used the correct Guidelines range. See United States v. Jones , 596 F.3d 273, 279 (5th Cir. 2010). The district court made no explicit statement suggesting that the G uidelines range was a primary factor in sentencing

. Neither t he partie s’ anchoring of their sentencing arguments in the Guidelines n or the district court’s refusal to grant the government’s request for a high

- end sentence of 96 months is “additional evidence” that the sentence affected Molina

- Martinez’s substantial rights. Accordingly, Molina

- Martinez has not established plain error warranting reversal by this court. See Puckett , 556 U.S. at 135. The judgment of the district court is AFFIRMED.

2 The court noted also in Pratt that there was uncertainty whether an overlap existed at a ll between the Guidelines range utilized and the correct range. See Pratt , 728 F.3d at 482. 4 Case: 13-40324 Document: 00512874118 Page: 4 Date Filed: 12/17/2014