NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 2311

_____________ UNITED STATES OF AMERICA

v. JUAN MANUEL PEREZ, Appellant

____________ On Appeal from the United States District Court for the District o f New Jersey ( No. 2

- 05

- cr - 00409

- 001 ) Distric t Judge: Honorable Susan D. Wigenton

Argued January 16 , 2013

____________ Before: SMITH , CHAGARES , and BARRY, Circuit Judges

.

(Filed : March 1, 2013 )
Alison Brill, Esq. [A rgued ] Office of Federal Public Defend er 22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609 Kevin F. Carlucci, Esq. Office of Federal Public Defender 1002 Broad Street Newark, NJ 07006 Counsel for Appellant2

Mark E. Coyne, Esq. Office of United States Attorney 970 Broad S treet Room 700 Newark, NJ 07102 Glenn J. Moramarco, Esq. [Argued ] Office of United States Attorney Camden Federal Building & Courthouse 401 Market Street Camden, NJ 08101 Counsel for Appellee

____________ OPINION

____________ CHAGARES, Circuit Judge

. Juan Manuel Perez was sentenced to 24 month s of imprisonment for violating the terms of his release from federal prison , and he now appeals that sentence

. We will
affirm the judgment of the District Court

. I.
We write solely for the parties and will therefore recount only those facts that are essential to our disposition. In June 2006, Perez was sentenced to 41 months of imprisonment for committing wire fraud in violation of federal law. While on supervised release, he was arrested for stealing a cr edit card machine. He was convicted and sentenced by the State of New Jersey. The District Court held a hearing because Perez’s commission of the state crime violated his terms of supervised release from federal prison. Perez pled guilty to the violatio n. The probation office d etermined that Perez had

a Category VI criminal history score, and that the state court conviction constituted a3

G rade A violation. Based on these calculations , it concluded that Perez’s a dvisory Guidelines range was 33 to 41 mon ths. The parties agree that the District Court erred in finding that Perez’s state court conviction was a Grade A violation and therefore miscalculated his Guidelines range. Because the offense was actually a Grade B violation, the range ( before consid ering the statutory maximum) should have been 21 to 27 months. U.S.S.G. § 7B1.4(a). Therefore, after taking the 24 month maximum pursuant to 18 U.S.C. § 3583(e)(3) into account , Perez’s correct range was 21 to 24 months. The District Court imposed a sen tence of 24
months.
II. 1 Because Perez failed to object to the District Court’s incorrect application of the Guidelines, we review for plain error

. United States v. Marcus , 130 S. Ct. 2159, 2164 (2010) ; Fed. R. Crim. P. 52(b). In reviewing for plain err or, we may, in [our] discretion, correct an error not raised at trial only where the appellant demonstrates that: (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affects the fairness, integrity or public repu tation of judicial proceedings.
Id. (quotation marks omitted).
The Government concedes that the District Court committed a clear or obvious error, but the parties dispute whether the error affected Perez’s substantial rights. To

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 18 U.S.C. § 3742(a).4

meet the th at criterion, a defendant must show that there is “a reasonable probability t hat the error affected the outcome” of the proceeding. Id. We conclude that Perez has failed to demonstrate a reasonable probability that the District Court’s error affected his sentence

. His sentence was statutorily capped at 24 months and, absent a v ariance or a departure, he could, at best, have hoped for a sentence
of 21

- 23 months. The District Cour t, however, highlighted “the numerous prior convictions that exist” on Perez’s record, calling them “very serious matters.” Appendix
37. The District Court also declined to impose a sentenc e concurrent to the one Perez

was already serving , stating that doing so “would be minimizing the seve rity of [the criminal] behavior; ” instead, the District Court conclu ded that only a consecutive sentence would “ref

lect the seriousness of what occurred,” considering Perez’s “history and characteristics.” Id. Furthermore, Perez presented no compelling case for a lenient sentence, arguing only for “some form of leniency . . . for [the] admission to the offenses
and a cceptance of responsibility.” Id. 34. Based on this record, we cannot conclude that
Perez has demonstrated a r easonable probability that the District Court’s error affected
his sentence. We also reject Perez’s challenge to the substantive reasonablenes s of his sentence.
III

. For the foregoing reasons, we will affirm the judgment of the District Court

.