IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40242

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LUIS ENRIQUE RUIZ-ARRIAGA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

EDITH H. JONES, Chief Judge:

Luis Enrique Ruiz-Arriaga pled guilty to illegal re-entry in violation of

8 U.S.C. § 1326 and was sentenced to 46 months imprisonment. He appeals his

sentence on the grounds that the district court incorrectly calculated the

appropriate Guideline range for a “crime of violence,” and its alternate nonGuidelines sentence cannot be sustained. Because the court committed no

reversible error, we AFFIRM.

I. BACKGROUND

Ruiz-Arriaga was deported in July 2007 after being convicted of sexual

assault of a child in Texas. TEX. PENAL CODE § 22.011(a)(2)(A), (c)(1). Three

months after his deportation, he was again arrested and pled guilty to

attempting illegally to re-enter the United States by telling an immigration

United States Court of Appeals

Fifth Circuit

F I L E D

April 9, 2009

Charles R. Fulbruge III

Clerk
No. 08-40242

2

officer that he was a U.S. citizen born in Dallas, Texas. The presentence report

(PSR) recommended a 16-level enhancement pursuant to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), classifying the earlier statutory rape conviction as a crime

of violence. As a result of this enhancement and other adjustments, RuizArriaga’s PSR recommended a total offense level of 21 and criminal history

Category III, corresponding to an imprisonment range of 46 to 57 months.

Ruiz-Arriaga submitted a written objection to the crime of violence

enhancement. The district court overruled the objection and held that the

correct guideline range was 46 to 57 months. During the sentencing hearing,

however, the district court added that:

. . . in the event that the court is incorrect about the guideline range,

that a sentence at certainly something more than 10 to 16 months,

which if the court were wrong is what—I haven’t recalculated, but

that’s what [defense counsel] says would be the range. The court

believes that a sentence of 46 months in custody would be

reasonable, even if the court is not correct about the guideline

range.

The district court added further comments on the sentence before concluding

that Ruiz-Arriaga would serve 46 months imprisonment. He appeals this

sentence.

II. DISCUSSION

This court reviews a district court’s interpretation and application of the

Guidelines de novo. See United States v. Alvarado-Hernandez, 465 F.3d 188, 189

(5th Cir. 2006). Because we find that any interpretive error was harmless, see

United States v. Jones, 444 F.3d 430, 443 (5th Cir. 2006), we need not determine

whether Ruiz-Arriaga’s previous statutory rape conviction was a crime of

violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

During the sentencing hearing, the district court stated that it had

considered the non-enhancement range offered by the defense and would have

imposed the same sentence independently of the Guidelines in light of the

seriousness and recent nature of the statutory rape conviction. Before a district
No. 08-40242

3

court imposes a non-Guideline sentence, it must first properly calculate the

applicable Guideline range and provide fact-specific reasons consistent with the

sentencing factors enumerated in section 3553(a). See United States v.

Tzep-Mejia, 461 F.3d 522, 525-26 (5th Cir. 2006); United States v. Smith,

440 F.3d 704, 707 (5th Cir. 2006).

As we noted in United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008),

“[n]ot all errors in determining a defendant’s guideline sentence require

reversal.” Id. at 656. Where the district court “considered the possible guideline

ranges that might apply to the defendant with and without a disputed

enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and

otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting

sentence does not result from an incorrect application of the Guidelines. Id.

Here, the district court considered the 46 to 57-month range with the crime of

violence enhancement and the 10 to 16-month range advocated by the defense.

This case would be indistinguishable from Bonilla but for an argument

raised for the first time on appeal. Ruiz-Arriaga now asserts that the sentence

range without the crime of violence enhancement, 10 to 16 months, suggested

by his counsel during the sentencing hearing, was also incorrect. He claims that

this range was based on a level that erroneously assigned him a criminal history

point for an earlier Texas misdemeanor conviction for failing to identify himself

as a fugitive to an officer. The elements of this conviction, he argues, were not

similar to his current offense under U.S.S.G. § 4A1.2(c)(1). The correct range

should have been 8 to 14 months, lowering the range by two months. Because

this point of error was not argued before the district and given that this range

was suggested by his counsel, we review this claim for plain error.

To prove plain error, Ruiz-Arriaga must “show (1) there was error, (2) the

error was plain, (3) the error affected his ‘substantial rights,’ and (4) the error

seriously affected ‘the fairness, integrity or public reputation of judicial

proceedings.’” United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (quoting
No. 08-40242

4

United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770 (1993)). To satisfy

the “substantial rights” prong, “in most cases . . . the error must have been

prejudicial: It must have affected the outcome of the district court proceedings.”

Olano, 507 U.S. at 734. Further, “[i]t is the defendant rather than the

Government who bears the burden of persuasion with respect to prejudice.” Id.

First, we cannot attribute “plain” error to a district court decision when

defense counsel affirmatively represented to the district court a sentencing range

that appellate counsel now disavows. Trial counsel’s misstatement essentially

waives the argument for any other sentencing range in this appeal. It is well

established that appellate courts may correct errors of law under a plain

standard where trial counsel simply stood mute at sentencing and failed to

object to the PSR. United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993),

cert. denied, 511 U.S. 1042, 114 S. Ct. 1565 (1994). This is because a “plain”

error is one that the district court, in its oversight of sentencing, should have

been alert to correct. Sentencing under the Guidelines is so complex, however,

that the court should not be faulted for “plain” error when counsel’s affirmative

statements allay any possible concern.

Second, Ruiz-Arriaga has not shown that he was prejudiced by the alleged

sentencing error. The district court, when considering the range that RuizArriaga now asserts was too high, dismissed the possibility of sentencing RuizArriaga to anything less than 16 months. Instead, the court stated that it would

sentence him to “certainly something more than 10 to 16 months” regardless of

the Guideline range. We have found that an error in applying the Guidelines “is

reversible error in cases involving non-Guideline sentences only if the sentence

resulted from the error.” United States v. Duhon, 541 F.3d 391, 396 (5th Cir.

2008) (emphasis added). It is hardly likely that the court would have responded

differently to a two month difference in range when it so clearly rejected the

slightly higher range. Without any evidence of prejudice, Ruiz-Arriaga cannot

meet his burden under plain error review.
No. 08-40242

 In so doing, the court relied in part on a letter submitted prior to 1

sentencing by Ruiz-Arriaga’s wife, claiming that his victim was only fourteen —

a reliance permitted for sentencing purposes but not, under Shephard, for crimeof-violence determinations.

5

Ruiz-Arriaga also contends for the first time on appeal that the district

court did not adequately explain its reasons for imposing his sentence. This

procedural objection is without merit. We have acknowledged that “more than

a brief statement may be required when a district court is presented with

nonfrivolous arguments for a sentence outside the Guidelines.” Bonilla,

524 F.3d at 657 (citing Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007)).

We have also declined to decide whether the adequacy of the trial court’s

reasoning is subject to plain error review when not objected to in the trial court.

Id. Here, we also need not reach the standard of review question. The court

noted its interest in protecting the public from further crimes, and she criticized 1

Ruiz-Arriaga’s failure to make a serious effort to stay in Mexico after his

deportation. As in Bonilla and Rita, the district court’s statements on the record

were adequate to establish that the sentence was reasonable and that the court

properly applied the § 3553 factors.

III. CONCLUSION

For the foregoing reasons, the sentence imposed by the district court is

AFFIRMED.