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 aggravated 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 Guidelines range set 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 17, 2014

Lyle W. Cayce

Clerk

 

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No. 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 

Guidelines range should have been 70 to 87 months. Because he did not object 

on this ground in the district court, we review the claim for plain error. See 

United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). MolinaMartinez must show an 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. 

His 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 total 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 MolinaMartinez’s Guidelines range from 77–96 months to 70–87 months. The 

government concedes this error. Molina-Martinez therefore has shown a plain 

2

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or obvious error in the criminal 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 

Guidelines 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 evidence, that the sentence affects a defendant’s substantial 

rights.’” Mudekunye, 646 F.3d at 290 (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 incorrect Guidelines range, MolinaMartinez 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). Record evidence that the Guidelines 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 withinGuidelines sentence was appropriate and that it was choosing a sentence in 

1 Although Molina-Martinez contends that an error in the Guidelines calculations 

should 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

 

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No. 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 additional evidence that the sentence 

affected his substantial rights. The mere fact that the court sentenced MolinaMartinez to a low-end sentence is insufficient on its own to show that MolinaMartinez would have received a similar low-end sentence had the 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 Guidelines range was a primary factor in sentencing. Neither the 

parties’ anchoring of their sentencing arguments in the Guidelines nor 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 all between the Guidelines range utilized and the correct range. See Pratt, 728 F.3d at 

482.

4

 

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