IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41146

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

AGUSTIN PATINO-ALMENDARIZ, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:15-CR-399-1

Before JONES, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

In May 2015, Defendant–Appellant Agustin Patino-Almendariz pleaded

guilty under 8 U.S.C. §§ 1326(a) and 1326(b)(1) to unlawfully reentering the 

United States after having been previously deported for a felony conviction. 

During sentencing, the district court erred in calculating Patino-Almendariz’s 

total criminal history points and thus imposed a sentence that exceeded the 

correct sentencing range under the U.S. Sentencing Guidelines (the 

 

* 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

November 21, 2016

Lyle W. Cayce

Clerk

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“Guidelines”). We hold that the district court’s error does not seriously affect 

the fairness, integrity, or public reputation of judicial proceedings, and 

therefore we AFFIRM.

I. BACKGROUND

On April 11, 2015, Patino-Almendariz, a citizen of Mexico, was arrested 

by Border Patrol agents in Cameron County, Texas. This arrest occurred only 

fifteen days after Patino-Almendariz had been deported on March 27, 2015. 

Patino-Almendariz did not have permission to reenter the United States. 

Following the April 2015 arrest, Patino-Almendariz was charged under 8 

U.S.C. §§ 1326(a) and 1326(b)(1) with unlawfully reentering the United States 

after having been deported for a felony conviction. On May 11, 2015, PatinoAlmendariz pleaded guilty without a plea agreement.

A presentence report (“PSR”) was prepared for the district court based 

on the 2014 edition of the Guidelines. The PSR indicated that PatinoAlmendariz had 13 total criminal history points under U.S.S.G. § 4A1.1. In 

calculating these points, the PSR took into account the numerous criminal 

convictions on Patino-Almendariz’s record, including convictions for driving 

while intoxicated, possession of a controlled substance, and unlawful entry into 

the United States. Among these prior offenses was a 2014 conviction for 

unlawfully reentering the United States after having been deported for a felony 

conviction. Patino-Almendariz had been sentenced to 13 months in custody for 

this 2014 offense. The PSR assigned 3 points to the 2014 unlawful reentry

conviction under U.S.S.G. § 4A1.1(a). Importantly, U.S.S.G. § 4A1.1(a)

provides that 3 points should be should be added “for each prior sentence of 

imprisonment exceeding one year and one month.”

Based on these and other calculations, the PSR gave Patino-Almendariz 

a total offense level of 10 and a criminal history category of VI, which resulted 

in a Guidelines range of 24 to 30 months’ imprisonment. Patino-Almendariz

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did not object to the PSR, either in writing or at his sentencing hearing. The 

district court adopted the PSR’s conclusions and sentenced Patino-Almendariz 

to 30 months’ imprisonment and 3 years of supervised released. PatinoAlmendariz now appeals, arguing that he is entitled to resentencing because 

the PSR erroneously assigned him an extra point for his 2014 unlawful reentry 

conviction.

II. STANDARD OF REVIEW

Because Patino-Almendariz did not object to the PSR’s calculations 

during the district court proceedings, we review for plain error. United States 

v. Hernandez, 690 F.3d 613, 620 (5th Cir. 2012). To establish plain error, the 

following must be satisfied:

(1) there must be an error or defect—some sort of [d]eviation from 

a legal rule—that has not been intentionally relinquished or 

abandoned; (2) the legal error must be clear or obvious, rather than 

subject to reasonable dispute; (3) the error must have affected the 

appellant’s substantial rights; and (4) if the above three prongs are 

satisfied, the court of appeals has the discretion to remedy the 

error—discretion which ought to be exercised only if the error 

seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) 

(internal quotation marks omitted) (quoting Puckett v. United States, 556 U.S. 

129, 135 (2009)).

III. DISCUSSION

A. First and Second Prongs

The first and second prongs of the plain error test direct us to determine 

(1) whether the district court erred and (2) whether that error was “clear or 

obvious.” Id. Patino-Almendariz argues, and the Government acknowledges, 

that he should only have been assigned 2 points for his April 2014 conviction 

because his sentence did not exceed 13 months’ imprisonment. As discussed 

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above, the Guidelines provide that 3 criminal history points should be added 

“for each prior sentence of imprisonment exceeding one year and one month.”

U.S.S.G. § 4A1.1(a) (emphasis added). Because Patino-Almendariz’s prior 

sentence was for one year and one month exactly, he should not have been 

assigned 3 points under § 4A1.1(a); rather, he should have been apportioned 

only 2 points under U.S.S.G. § 4A1.1(b). This correction would have given 

Patino-Almendariz 12 total criminal history points, instead of 13, and would 

have placed him in criminal history category V. U.S.S.G. ch. 5, pt. A. As a 

result, the correct Guidelines range would have been 21 to 27 months, rather 

than 24 to 30 months. Id. The district court certainly erred by improperly 

calculating Patino-Almendariz’s Guidelines range. “As our conclusion is 

reached by a straightforward application of the guidelines,” the district court’s 

error was clear and obvious. United States v. Blocker, 612 F.3d 413, 416 (5th 

Cir. 2010). Thus, we hold that the first two prongs of the plain error analysis 

are satisfied. 

B. Third Prong

Next, we address whether the PSR’s error affected Patino-Almendariz’s 

substantial rights. To show that an error affected his substantial rights, a 

defendant “must ‘show a reasonable probability that, but for the error,’ the 

outcome of the proceeding would have been different.” Molina-Martinez v. 

United States, 136 S. Ct. 1338, 1343 (2016) (quoting United States v. 

Dominguez Benitez, 542 U.S. 74, 76 (2004)). In Molina-Martinez, the Supreme 

Court held that “[w]hen a defendant is sentenced under an incorrect 

Guidelines range . . . the error itself can, and most often will, be sufficient to 

show a reasonable probability of a different outcome absent the error.” Id. at 

1345. In the absence of any countervailing evidence, we hold that PatinoAlmendariz has established that the error in this case affected his substantial 

rights. Even though the difference was slight, the error shifted Patino-

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Almendariz’s Guidelines range upward and therefore subjected him to a 

sentence that exceeded the correct Guidelines range. Accordingly, we hold that 

the third prong of the plain error analysis is satisfied. 

C. Fourth Prong

Even though the PSR’s miscalculation meets the first three prongs of 

plain error analysis, the error falls short of meeting the fourth prong’s 

requirements. “The fourth prong of plain error review is not satisfied simply 

because the ‘plainly’ erroneous sentencing guideline range yields a longer 

sentence than the range that, on appeal, we perceive as correct.” United States 

v. Sarabia-Martinez, 779 F.3d 274, 278 (5th Cir. 2015). If the first three prongs 

of the plain error analysis are met, this Court may exercise its discretion to 

remedy the error “only if the error seriously affect[s] the fairness, integrity or 

public reputation of judicial proceedings.” Escalante-Reyes, 689 F.3d at 419 

(quoting Puckett, 556 U.S. at 135). In other words, this Court’s discretion to 

correct the sentence “should be employed in those circumstances in which a 

miscarriage of justice would otherwise result.” Id. at 425 (quoting United 

States v. Olano, 507 U.S. 725, 736 (1993)). “The fourth prong is meant to be 

applied on a case-specific and fact-intensive basis.” Puckett, 556 U.S. at 142.

Bearing in mind that the fourth prong of plain error analysis is 

concerned with preserving “the fairness, integrity or public reputation of 

judicial proceedings,” Escalante-Reyes, 689 F.3d at 419 (quoting Puckett, 556 

U.S. at 135), we are not convinced that vacating the district court’s sentence 

would further those objectives given Patino-Almendariz’s extensive criminal 

record and the relatively small discrepancy between his sentence and the 

correct Guidelines range. The seriousness of Patino-Almendariz’s unlawful

reentry into the United States in April 2015 was exacerbated by the fact that 

he had been deported just fifteen days earlier. Also troubling are PatinoAlmendariz’s numerous other offenses. He was convicted on three separate 

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occasions for driving while intoxicated, on three separate occasions for public 

intoxication, and once for possession of a controlled substance. Moreover, 

Patino-Almendariz has three prior convictions for unlawfully entering the 

United States—in 2008, 2013, and 2014—and has an additional prior 

conviction for unlawfully reentering the United States in 2014 in violation of 8 

U.S.C. §§ 1326(a) and 1326(b)(1). Given these facts, we conclude that declining 

to correct the district court’s error would not result in a miscarriage of justice.

IV. CONCLUSION

For the above reasons, the district court’s judgment is AFFIRMED.

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