IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40522

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARTIN TERAN-CONTRERAS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:17-CR-33-1

Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

ON PETITION FOR REHEARING

The appellees’ petition for panel rehearing is granted. The prior panel 

opinion, United States v. Teran-Contreras, No. 17-40522 (5th Cir. 2018), is 

withdrawn, and the following opinion is substituted:

Martin Teran-Contreras pleaded guilty to being found in the United 

States after being removed previously, in violation of 8 U.S.C. § 1326(a) and

(b). At sentencing, the district court imposed an upward departure based on 

 

* 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

September 13, 2018

Lyle W. Cayce

Clerk

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substantial underrepresentation of Teran-Contreras’s criminal history. In 

giving its reasons for the departure, the district court referred to TeranContreras’s serious criminal history, including an offense originally charged as 

robbery with a deadly weapon. On appeal, Teran-Contreras contends that the 

district court violated his due process rights by relying on allegations taken 

from the robbery indictment, given that he ultimately pleaded guilty to seconddegree robbery, which does not have as an element the use of a deadly weapon. 

“Generally, this Court reviews the district court’s application of the 

Sentencing Guidelines de novo.” United States v. Nesmith, 866 F.3d 677, 679 

(5th Cir. 2017) (quoting United States v. Garcia-Perez, 779 F.3d 278, 281 (5th 

Cir. 2015)). However, if an objection was not sufficiently raised in the district 

court, this court reviews for plain error only. See United States v. Hernandez, 

690 F.3d 613, 620 (5th Cir. 2012). “The purpose of requiring defendants to 

make timely objections to the PSR and actual sentence is ‘founded upon 

considerations of fairness to the court and to the parties and of the public 

interest in bringing litigation to an end after fair opportunity has been afforded 

to present all issues of law and fact.’” United States v. Ocana, 204 F.3d 585, 

589 (5th Cir. 2000) (quoting United States v. Ruiz, 43 F.3d 985, 988 (5th Cir. 

1995)). Thus, “[a] party must raise a claim of error with the district court in 

such a manner so that the district court may correct itself and thus, obviate 

the need for our review.” United States v. Bullard, 13 F.3d 154, 156 (5th Cir. 

1994).

Teran-Contreras contends that he preserved the argument urged on 

appeal because: (1) he objected in writing that “no reliable information 

indicates that the criminal history category fails to adequately reflect the 

seriousness of [his] past criminal conduct or the likelihood that he will commit 

other crimes”; (2) counsel objected at sentencing that the district court was 

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relying on “incidents” that were “just allegations”; and (3) “Teran-Contreras 

himself objected that there was no weapon.” However, Teran-Contreras’s 

written objection was too vague to give the trial court a reasonable opportunity 

to address the alleged error. See, e.g., United States v. Chavez-Hernandez, 671 

F.3d 494, 497-98 (5th Cir. 2012). Counsel’s objection at sentencing did not 

fairly encompass the argument made on appeal and thus was not clearly 

sufficient to give the district court the opportunity to “correct itself.” Bullard, 

13 F.3d at 156. Finally, though Teran-Contreras, who was represented by 

counsel, relies on statements that he himself made at the sentencing hearing, 

he does not explain why this court should consider these pro se statements an 

objection. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009)

(finding that defendant with counsel did not preserve argument for appeal 

where he “challenged the district court’s ruling . . . only in [a] pro se motion he 

filed following his revocation hearing”). To the extent he relies on a permissive 

hybrid-representation theory, Teran-Contreras has failed to sufficiently brief 

this argument. See SEC v. Life Partners Holdings, Inc., 854 F.3d 765, 784 (5th 

Cir. 2017) (inadequately briefed arguments are forfeited). Accordingly, we find 

that Teran-Contreras did not preserve his due process argument. See Nesmith, 

866 F.3d at 679; Chavez-Hernandez, 671 F.3d at 497. 

Consequently, we review his claim for plain error. See Puckett v. United 

States, 556 U.S. 129, 135 (2009). To show plain error, Teran-Contreras must 

show a forfeited error that is clear or obvious and that affected his substantial 

rights. See id. If he makes such a showing, this court has the discretion to 

correct the error but only if it “seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings.” Id. (internal quotation marks and 

citations omitted).

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Even if we were to assume the district court committed a clear or obvious 

error by relying on allegations from an indictment, Teran-Contreras would not 

be entitled to relief because he cannot demonstrate that any error affected his 

substantial rights. See Puckett, 556 U.S. at 135. The district court’s decision 

to upwardly depart was based primarily on Teran-Contreras’s significant 

history of unadjudicated charges and arrests for violent offenses. See, e.g., 

United States v. Fuentes, 775 F.3d 213, 219-20 (5th Cir. 2014) (considering the 

facts underlying prior arrests). Moreover, the district court’s stated concern 

with respect to the robbery offense was its violent nature. Teran-Contreras 

was ultimately convicted of second-degree robbery, which is committed by, in 

the course of committing theft, “intentionally, knowingly, or recklessly 

caus[ing] bodily injury to another; or . . . intentionally or knowingly

threaten[ing] or plac[ing] another in fear of imminent bodily injury or death.” 

TEX. PENAL CODE § 29.02(a). For purposes of the district court’s inquiry, the 

distinction between the charged offense and the offense of conviction is of little 

significance, as second-degree robbery is also a serious and violent crime. 

Thus, Teran-Contreras cannot demonstrate that, absent error, there is a 

reasonable probability that he would have received a different sentence. See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). He has 

therefore failed to show reversible plain error. See Puckett, 556 U.S. at 135.

AFFIRMED.

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