### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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) appeal s t h e sentence imposed f o l l o wing his guilty plea conviction for being unlawfully present in the Unite d 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. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D July 27, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

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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

r e c o r d i n dicates 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. 201 0). 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 wa s t o o r emote in time to be counted. He asserts that without the erroneously applied criminal history point, his criminal history category would have been II i n s t e a d of III, and his guidelines sentence range would have b e e n 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 c o u r t ’s rejection of the request for a 50-month sente n c e m a d e 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 guidelin e s range. In the alternative, Sanchez argues that any error in calculating the guidelines range should presumptivel y a f f e c t

a defendant’s substantial rights even if the sentence is within the correctly
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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. T h e district court erroneously applied one criminal history poin t f o r Sanchez’s prio r conviction for petty theft because the sentence for that offense

was less than one year and one month of imprisonment and t h e sentence was imposed more than 10 years prio r t o t h e 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 calcu l a t e d that Sanchez’s guidelines sentence range was 46-57 months of imprisonment, and the correct guidelines sentence range was 41-51 months of i m p ri s o n m ent. Sanchez’s sentence of 46

m o n ths of imprisonment was, therefore, at the bottom of the incorrec t l y calculated guidelines range, but in the middle of th e c o r r e ctly calculated guidelines range. To show an affect on his substantial rights, Sanchez must demonstrate a “reasonable probability that, but for the district c o u r t ’ 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. C t

. 6 2 3 ( 2 0 1 0) (internal quotation marks and citation omitted). Where the sentence imposed “falls in s i de both the correct and incorrect guidelines ranges, we h av e shown considerable
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reluctance in finding a reasonable probability that the district court would have settled on a lower sentence

. ” I d

. (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 co u r t r ej e cted the request of the Government and the
p r ob a t ion officer for a sentence of 50 months of imprisonment, it also reject e d Sanchez’s request for a sentence below the in correctly calculated guidelines range. The district court sentenced Sanchez at the bo t t o m o f t he 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 inclu de d th e s a m e inc orre ctly 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 distri ct court’s misapplication of the Guidelines, he would have received a lesser sentence,” and he has not shown that t h e e r r o r a f fected his substantial rights. Id. at 714 (internal quotation marks and citation omitted). As S a n c h e z concedes, his

alt ern ative ar gu m e nt th at any guidelines calculation error presumptively af f ect s a defendant’s substantial rights is foreclosed. See Blocker , 612 F.3d at 416. AFFIRMED.

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