IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41074

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEX ENRIQUE SANCHEZ-BRENEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:10-CR-642-1

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Alex Enrique Sanchez-Brenez (Sanchez) appeals the sentence imposed

following his guilty plea conviction for being unlawfully present in the United

States following removal. For the first time on appeal, Sanchez argues that the

district court plainly erred in its calculation of his criminal history category

because it applied a criminal history point for a stale prior conviction for petty

theft.

United States Court of Appeals

Fifth Circuit

F I L E D

July 27, 2011

Lyle W. Cayce

Clerk

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: 10-41074 Document: 00511552738 Page: 1 Date Filed: 07/27/2011
No. 10-41074

The Government maintains that Sanchez waived the issue he raises on

appeal by stating that there were no corrections or objections to the presentence

report (PSR) that the district court needed to consider and by agreeing that the

guidelines sentence range was 46-57 months of imprisonment. It contends that

the statements of Sanchez’s counsel were a knowing waiver of the issue rather

than a general statement of no objections to the PSR. Sanchez asserts that he

did not waive the issue because he did not intentionally relinquish a known

right.

Although Sanchez did not object to the PSR and affirmatively agreed with

the guidelines sentence range calculations set forth in the PSR, nothing in the

record indicates that Sanchez knew that he had a viable challenge to his

criminal history category and that he intentionally relinquished that challenge. 

Accordingly, Sanchez did not waive the argument he raises on appeal. See

United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir. 2010).

Sanchez argues that the district court committed plain error by applying

one criminal history point for his prior conviction for petty theft because the

petty theft conviction was too remote in time to be counted. He asserts that

without the erroneously applied criminal history point, his criminal history

category would have been II instead of III, and his guidelines sentence range

would have been 41-51 months of imprisonment instead of 46-57 months of

imprisonment. Sanchez acknowledges that his sentence is within the correctly

calculated guidelines range, but he maintains that his substantial rights were

violated because the district court’s rejection of the request for a 50-month

sentence made by the Government and the probation officer and Sanchez’s

account of the torture and extortion he suffered in transit to the United States

show that the district court would likely have imposed a lesser sentence if it had

correctly calculated the guidelines range. In the alternative, Sanchez argues

that any error in calculating the guidelines range should presumptively affect

a defendant’s substantial rights even if the sentence is within the correctly

2

Case: 10-41074 Document: 00511552738 Page: 2 Date Filed: 07/27/2011
No. 10-41074

calculated guidelines range. Sanchez acknowledges that this argument is

foreclosed by circuit precedent, and he raises it to preserve the issue for further

review.

Because Sanchez did not raise this issue in the district court, we review

for plain error only. See United States v. John, 597 F.3d 263, 282 (5th Cir. 2010). 

To show plain error, Sanchez must show a forfeited error that is clear or obvious

and that affects his substantial rights. See Puckett v. United States, 129 S. Ct.

1423, 1429 (2009). If he makes such a showing, we have the discretion to correct

the error but will do so only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See id. 

The district court erroneously applied one criminal history point for

Sanchez’s prior conviction for petty theft because the sentence for that offense

was less than one year and one month of imprisonment and the sentence was

imposed more than 10 years prior to the commencement of Sanchez’s present

offense. See U.S.S.G. § 4A1.2(e)(1)-(3). As the Government concedes, the error

was clear or obvious. See United States v. Arviso-Mata, 442 F.3d 382, 385 (5th

Cir. 2006).

The district court erroneously calculated that Sanchez’s guidelines

sentence range was 46-57 months of imprisonment, and the correct guidelines

sentence range was 41-51 months of imprisonment. Sanchez’s sentence of 46

months of imprisonment was, therefore, at the bottom of the incorrectly

calculated guidelines range, but in the middle of the correctly calculated

guidelines range. 

To show an affect on his substantial rights, Sanchez must demonstrate a

“reasonable probability that, but for the district court’s misapplication of the

Guidelines, he would have received a lesser sentence.” United States v. Blocker,

612 F.3d 413, 416 (5th Cir.), cert. denied, 131 S. Ct. 623 (2010) (internal

quotation marks and citation omitted). Where the sentence imposed “falls inside

both the correct and incorrect guidelines ranges, we have shown considerable

3

Case: 10-41074 Document: 00511552738 Page: 3 Date Filed: 07/27/2011
No. 10-41074

reluctance in finding a reasonable probability that the district court would have

settled on a lower sentence.” Id.(internal quotation marks and citation omitted). 

In such cases, “we do not assume, in the absence of additional evidence, that the

sentence affects a defendant’s substantial rights.” Id.

While the district court rejected the request of the Government and the

probation officer for a sentence of 50 months of imprisonment, it also rejected

Sanchez’s request for a sentence below the incorrectly calculated guidelines

range. The district court sentenced Sanchez at the bottom of the incorrectly

calculated guidelines range without giving any indication that it would have

imposed a lesser sentence if the guidelines range were lower. The present case

is indistinguishable from United States v. Jasso, 587 F.3d 706, 713 (5th Cir.

2009), which included the same incorrectly calculated guidelines range, the same

correctly calculated guidelines range, and the same sentence. As in Jasso, the

sentence falls exactly in the middle of the correctly calculated guidelines range,

and while the district court sentenced Sanchez to a sentence at the bottom of the

incorrectly calculated guidelines range, there is no indication in the record that

the district court would have sentenced Sanchez at the bottom of any guidelines

range. See id. at 713-14 & n.11. Thus, like the defendant in Jasso, Sanchez

“cannot demonstrate a reasonable probability, but for the district court’s

misapplication of the Guidelines, he would have received a lesser sentence,” and

he has not shown that the error affected his substantial rights. Id. at 714

(internal quotation marks and citation omitted). As Sanchez concedes, his

alternative argumentthat any guidelines calculation error presumptively affects

a defendant’s substantial rights is foreclosed. See Blocker, 612 F.3d at 416.

AFFIRMED.

4

Case: 10-41074 Document: 00511552738 Page: 4 Date Filed: 07/27/2011