### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 11433

UNITED STATES OF AMERICA , Plaintiff

–

Appellee ,

versus JOSE NINO

- CARREON , Defendant

– Appellant

.

On Appeal from the United States District Court for the Northern District of Texas

Before SMITH , BARKSDALE , and HO , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
Jose Nino

- Carreon ple ade d guilty of illegal reentry after removal and

was sentenced to fifty months’ imprisonment. He appeals his sentence, assert

ing that the district court plainly erred in assessing criminal history points for three convictions occurring in 2003 and 2004. He maintains that the court determi ned that the earliest date of his off ense and relevant conduct was Aug

ust 17, 2016, the date he was apprehended by immigrat ion authorities, and United State s Court of Appeals Fifth Circuit 

### FILED December 3, 2018 Lyle W. Cayce Clerk Case: 17-11433 Document: 00514745905 Page: 1 Date Filed: 12/03/2018No. 17

- 11433

2 consequently, that the earlier convictions should not have been scored because the sentence in each was imposed more than ten years before that date. See U.S.S.G. § 4A1.2(e)(2). Though Nino

- Carreon is correct that the district court erred in scoring th o se three convictions , he has not demon strated that the error affected his substantial rights. See Puckett v. U nited States , 556 U.S. 129, 135 (2009). Therefore, we affirm.
I. We review this issue for plain error because Nino

- Carreon failed to object to the computation of his criminal history score in the district court. See United States v. Carlile , 884 F.3d 554, 556 (5th Cir. 2018). Nino

- Carreon must satisfy three hurdles before this court may exercise its discretion to correct plain error. First, “there must be an error or defect

. . . that has not been intentionally re lin quished or abandoned

. . . by the app ellant.” Puckett , 556 U.S. at 135. Sec

ond, “the legal error must be clear or obvious, rather than subject to rea sonable dispute.” Id. Third, “the error must have affected the appellant’ s sub stantial rights

. ” Id. If Nino

- Carreon satisfies these thr ee conditions, “the court of appeals should exercise its discretion to correct the forfeited error if the error ‘seriously affects the fairness, integrity or public reputation of judicial pro ceed

ings.’” Molina

- Martinez v. United States , 136 S. Ct. 1338, 1343 (2016) (quoting United States v. Olano , 507 U.S. 725, 736 (1993)).
II. As Nino

- Carreon acknowledges, his criminal history category of VI re

mains unchanged so long as the district court correctly assessed a criminal history point for one of the three co ntested convictions . The most recent sen

tencing date is December 1, 2004. Therefore, he must have entered the United States on or before December 1, 2014, when the ten

- year lim i tations period expired, for the district court not to have erred. Case: 17-11433 Document: 00514745905 Page: 2 Date Filed: 12/03/2018No. 17

- 11433

3 Nino

- Carreon contends that this court must use the date he was appre

hended in the United States, A ugust 17, 2016, as his earliest offense date. But “when determining whether a prior conviction meets the time

- period require

ment for assessing criminal his tory points under § 4A1.2(e), the triggering date is that of the defendant’s illegal reentry, not the date on which the defendant was found by immigration authorities in the United States.” United States v. Ponce , 896 F.3d 726, 728 (5th Cir. 2018). Thus, Nino

- Carreon’s assertion is meritless. N evertheless, contrary to the government’s claims, the record does not
sup port a finding that Nino

- Carreon reentered the United States between his December 30, 2012 , deportation and December 1, 2014. The Presentence Report (“PSR”) stat es that Nino

- Carreon (1) worked as a roofer in Texas from 2015 to 2016 and (2) was in a relationship with his girlfriend, an alleged U.S. resident who lived in Fort Worth, “for two years” before his August 29, 2017 , PSR interview. Consequently, nothing in the PSR points to a date of reentry earlier than 2015. The government’s assertion that the probation officer “implicitly found” that the December 1, 2004 , sentence occurred “within ten years of [Nino

- Carreon’s] most r ecent ille gal reentry,” contrary to the PSR’s explicit statement that his “earliest offense date, including relevant conduct[,] is August 17, 2016,” is unavailing. There fore, Nino

- Carreon has satisfied the first two plain

- error prongs : T here was an err or that was not intentionally relinquished or abandoned, and the error was clear based on the evidence con

tained in the PSR. To satisfy the third pro ng, “the defendant ordinarily must ‘show a rea

sonable probability that, but for the error, the outcome o f the pro ceeding would have been different. ’ ” Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1904

– 05 (2018) (quoting Molina

- Martinez , 136 S. Ct. at 1343). “When a defen dant is Case: 17-11433 Document: 00514745905 Page: 3 Date Filed: 12/03/2018No. 17

- 11433

4 sentenced under an incorrect Guidelines range

— whether or not the defen

d ant’s ultimate sentence falls within the correct range

— the error itself can, and most often will, be sufficient to show a rea sonable probability of a different outcome absent the error.” Molina

- Martinez , 136 S. Ct. at 1345. But “[t]here may be instances when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist.” Id. at 1346. For example, “[j]udges may find that some cases merit a detailed explanation of the reasons the selected sentence is appropri ate [and] [t]hat explanation could make it clear that the judge based the sentence

. . . on factors independent of the Guidelines.” Id. at 1346

– 47. That is the case here. There is no reasonable probability that Nino

Carreon’s sentence would have been different had the district court used the

cor rect range. Even before the sentencing hearing, the court ex pressed a “ten

tative conclusion that the de fendant should receive a sentence of impris on ment significantly above the top of the advisory guideline range.” During the hear

ing, the court emphasized Nino

- Carreon’s criminal history through a com pre hensive recitation filling six transcript pages. The court devoted partic u lar atten tion to Nino

- Carreon’s two 2016 assaults resulting in bodily injury on a family member, describing in detail what he had done. The court added, “And I have concluded a sentence of imprisonment of 50 months is absolute ly nec

essary to satisfy those [sentencing] factors.” In its statement of reasons, the court specified that those factors were “the history and charac teristics of the defendant, the nature and circum stances of the offense,

. . . [the need f or the senten ce imposed to reflect] the seriousness of the offense[,] to promote respect for the law, and [to] protect the public from further crimes by the defendant.” The district court’s statements thus substantiate that there is no reason

a ble probability that Nin o - Carreon’s sentence would have been different had Case: 17-11433 Document: 00514745905 Page: 4 Date Filed: 12/03/2018No. 17

- 11433

5 the court used the correct g uideline range of 21 to 27 months instead of 24 to 30 months. The court provided “a detailed explanation of the reasons the sel ected sentence is appropriate” and made “clear t hat the [court] based the sen

tence

. . . on factors independent of the Guidelines.” Id. Consequently, Nino

Carreon has not demonstrated that the error affected his substantial rights , and we have no need to address the fourth prong. The judgment of se ntence is AFFIRM ED. Case: 17-11433 Document: 00514745905 Page: 5 Date Filed: 12/03/2018