IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41236

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CARLOS ZUASO EMANUEL-FUENTES, also known as Carlos Zuaso 

Emanuel, also known as Carlos Zuasoemanuel, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:14-CR-452

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Assuming, arguendo, that the district court committed reversible plain 

error in determining Carlos Zuaso Emanuel-Fuentes’ criminal-history 

category under the advisory Sentencing Guidelines, at issue is whether we 

should, in our discretion, vacate the sentence and remand for re-sentencing. 

In that regard, Emanuel contends the court committed plain error in adopting 

 

* 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

December 31, 2015

Lyle W. Cayce

Clerk

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the Pre-sentence Investigation Report’s (PSR) recommendation he receive one 

criminal-history point for a 2009 state drug offense for which he was charged 

but not convicted. AFFIRMED.

I.

Emanuel, a native and citizen of Honduras, illegally entered the United 

States in 2008, and was deported in 2011. In April 2014, he was found in 

Laredo, Texas, without documents allowing him to legally re-enter. Emanuel

pleaded guilty to unlawful re-entry after deportation, in violation of 8 U.S.C. 

§ 1326.

As discussed further below, Emanuel’s PSR calculated a total offense 

level of 21 and four criminal-history points: three for a 2009 Texas sexualassault conviction; and one, at issue here, for a 2009 Texas possession-of-crackcocaine offense. 

Regarding the criminal-history point at issue, in 2009, prior to

sentencing for his sexual-assault conviction, Emanuel filed “Defendant’s 

Motion Requesting Court To Consider Admitted Unadjudicated Offenses 

During Sentencing”. (Emphasis added.) The motion listed his pending, 

unadjudicated crack-cocaine charge and stated: “[T]he defendant hereby 

admits his guilt in . . . the above mentioned unadjudicated cause[ ]”. (Emphasis 

added.) The motion requested Emanuel’s drug charge be taken into 

consideration at his sentencing for the sexual-assault charge; in exchange, the 

State would be barred from further prosecuting that drug charge. The motion 

was granted. 

In determining Emanuel’s advisory sentencing range under the 

Guidelines for his 2014 unlawful re-entry conviction, the PSR stated Emanuel

was “adjudged guilty” of the 2009 crack-cocaine charge. Emanuel’s abovedescribed state-court motion was not part of the record for sentencing in 

district court, and he did not object to its absence. Similarly, he did not object 

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to the PSR’s characterization of his having been “adjudged guilty” of his prior 

drug offense. 

Based on that offense, the PSR assessed one criminal-history point, 

pursuant to Guidelines §§ 4A1.1(c) and 4A1.2(a)(4) (add one criminal history 

point if defendant was “convicted of an offense”, defined as: “the guilt of the 

defendant has been established, whether by guilty plea, trial, or plea of nolo 

contendere”). Emanuel did not object to the assessment of the criminal-history 

point, which resulted in a criminal-history category of III, and a Guidelines 

sentencing range of 46–57 months. Had the point not been assessed, 

Emanuel’s criminal-history would have been category II, with a sentencing 

range of 41–51 months. See U.S.S.G. Ch.5, Pt.A (Sentencing Table). 

Prior to pronouncing sentence, the district court adopted the PSR in its 

entirety. Emanuel was sentenced, inter alia, to 52 months’ imprisonment. 

II.

For the first time on appeal, Emanuel claims the district court 

erroneously assessed the criminal-history point for his 2009 drug-possession 

offense, because he was charged with, but not convicted of, the offense. He 

contends the offense was not adjudicated, and thus was mischaracterized in 

the PSR. 

Although post-Booker, the Guidelines are advisory only, and a properly 

preserved objection to an ultimate sentence is reviewed for reasonableness 

under an abuse-of-discretion standard, the district court must still properly 

calculate the Guidelines sentencing range for use in deciding on the sentence 

to impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In that respect, 

for issues preserved in district court, its application of the Guidelines is 

reviewed de novo; its factual findings, only for clear error. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. 

Villegas, 404 F.3d 355, 359 (5th Cir. 2005). 

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Because Emanuel failed to object in district court to the claimed error 

now raised on appeal, however, review is only for plain error. E.g., United 

States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Under this 

standard, he must show a forfeited plain (clear or obvious) error that affected 

his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). 

If he does so, this court has the discretion to correct the reversible plain error, 

but only if it “seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings”. Id.

A.

As stated supra, Emanuel’s 2009 state-court motion, in which he 

admitted his guilt for the 2009 state drug offense, was not part of the record at 

sentencing, and he did not object to its absence. For this appeal, Emanuel

moved to supplement the record with state court documents, including the 

state-court motion. The motion to supplement the record was unopposed, and 

our court granted it. 

B.

In claiming he was erroneously assessed the criminal-history point for 

his drug-possession offense, because he was charged with, but not convicted of, 

it, and without citing authority, Emanuel asserts the offense falls outside the 

Guidelines’ definition of “conviction”, which requires guilt be established “by 

guilty plea, trial, or plea of nolo contendere”. U.S.S.G. § 4A1.2(a)(4). Emanuel 

concedes: he did not object to the PSR or at sentencing; and, plain-error review 

applies. In that regard, he contends the state-court motion demonstrates the 

requisite plain error, because it proves the 2009 drug offense was not 

adjudicated; therefore, it could not support the criminal-history point. (This is 

in part in response to the Government’s position, discussed below, that an issue 

of fact can never constitute plain error.) 

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Emanuel asserts the error affected his substantial rights, because, 

without the additional point, his criminal-history category would have dropped 

from category III to II. In other words, his advisory sentencing range would 

have been 41–51 months, rather than 46–57 months. He maintains his 52-

month sentence—one month above the top of the lower Guidelines sentencing 

range—would not have been imposed had his criminal history been properly 

calculated. In support, Emanuel points to the district court’s related statement 

at sentencing (“I’m going to stay within the [G]uideline range”) and its failure 

to suggest it would have imposed the same 52-month sentence regardless of 

the advisory sentencing range. 

The Government counters: whether Emanuel’s unadjudicated drug 

offense resulted in a “conviction” under § 4A1.2(a)(4) is a question of fact that 

could have been resolved by the district court; and, therefore, under United 

States v. Lopez, 923 F.2d 47 (5th Cir. 1991), it cannot constitute plain error. In 

that regard, our court has held that “[q]uestions of fact capable of resolution 

by the district court upon proper objection at sentencing can never constitute 

plain error”. Id. at 50; see also, United States v. Vital, 68 F.3d 114, 119 (5th 

Cir. 1995); United States v. Bleike, 950 F.2d 214, 221 (5th Cir. 1991).

Whether the characterization of Emanuel’s prior offense constituted 

plain error need not be decided. Assuming, without deciding, Emanuel could 

satisfy the elements required to show reversible plain error, this court has

discretion, as discussed above, to remedy the error; but, as stated, such 

discretion should be exercised only if the error “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings”. Puckett, 556 U.S. at 135. 

This discretion element of plain-error review “is . . . to be applied on a casespecific and fact-intensive basis”. Id. at 142.

A review of the facts and circumstances underlying Emanuel’s sentence 

demonstrate that an exercise of such discretion is inappropriate. See, e.g.,

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United States v. Davis, 602 F.3d 643, 650–51 (5th Cir. 2010). First, as stated 

supra, although we assume, arguendo, his state drug offense had not been 

adjudicated, Emanuel admitted his guilt in his “Motion Requesting Court To 

Consider Admitted Unadjudicated Offenses During Sentencing”. The motion 

listed the pending charge and stated: “[T]he defendant hereby admits his guilt 

in [ ] the above mentioned unadjudicated cause[ ]”. It also stated he “stands 

adjudged guilty” of that offense. (Emphasis added.) The motion was signed by 

Emanuel and his attorney. In effect, the motion was a guilty plea. As 

discussed, although the motion was not part of the record at sentencing, 

Emanuel successfully moved to include it in the record on appeal. 

Moreover, in contrast to the one-month disparity at issue, our court has 

exercised its discretion to remedy an error when the imposed sentence has been 

“materially or substantially above the properly calculated range”. United 

States v. John, 597 F.3d 263, 289 (5th Cir. 2010) (miscalculated sentence was 

21 months outside the top of the correct Guidelines sentencing range); see also 

United States v. Mudekunye, 646 F.3d 281, 290–91 (5th Cir. 2011) (19-month 

disparity); United States v. Hernandez, 690 F.3d 613, 621–22 (5th Cir. 2012) 

(12-month disparity). 

Conversely, in United States v. Avalos-Martinez, the erroneouslyimposed sentence at issue exceeded the correct Guidelines sentencing range by 

one month. 700 F.3d 148, 154 (5th Cir. 2012). Although this court determined 

Avalos demonstrated reversible plain error, id., it declined to exercise its 

discretion to remedy the error, after “[c]onsidering the degree to which 

[Avalos’] sentence exceed[ed] the correct [G]uidelines range and the facts 

surrounding [his] convictions”. Id.

The circumstances are similar here. When considering the entire record, 

including Emanuel’s admission of guilt for the state drug offense, and the onemonth sentencing disparity, the assumed error should not be corrected because 

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it does not “seriously affect the fairness, integrity or public reputation of 

judicial proceedings”. Puckett, 556 U.S. at 135. 

III.

For the foregoing reasons, the judgment is AFFIRMED.

James L. Dennis, Circuit Judge, concurs only in the judgment.

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