* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40714

c/w No. 10-40716

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EULALIO JUAREZ-RODRIGUEZ, also known as Sergio Pulidio, also known as

Eulalio Juarez,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 1:10-CR-270-1

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

Eulalio Juarez-Rodriguez appeals the 77-month sentence imposed

following his guilty plea conviction for being an alien found unlawfully in the

United States and the 21-month sentence imposed upon revocation of his

supervised release. Juarez-Rodriguez contends that his 77-month sentence

should be vacated because the district court erred by assessing a criminal history

United States Court of Appeals

Fifth Circuit

F I L E D

May 4, 2011

Lyle W. Cayce

Clerk
No. 10-40714 c/w 10-40716

2

point for his 2001 Texas conviction for failure to stop and leave information. He

contends that his 21-month revocation sentence should also be vacated because

it was formulated in combination with his 77-month sentence.

According to Juarez-Rodriguez, his Texas conviction for failure to stop and

leave information should not have been counted because it qualified as the

enumerated offense of leaving the scene of an accident under U.S.S.G.

§ 4A.12(c)(1). Because Juarez-Rodriguez did not object on this ground in the

district court, the plain error standard of review applies. See United States v.

Jasso, 587 F.3d 706, 709 (5th Cir. 2009). To show plain error, the appellant

must show a forfeited error that is clear or obvious and that affects his

substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the

appellant makes such a showing,this court has the discretion to correctthe error

but only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id.

Irrespective of whether the district court committed clear or obvious error

in assessing the criminal history point challenged by Juarez-Rodriguez, a

question we do not decide, Juarez-Rodriguez’s substantial rights were not

affected. To show an affect on his substantial rights, Juarez-Rodriguez must

demonstrate a “reasonable probability that, but for the district court’s

misapplication of the Guidelines, he would have received a lesser sentence.”

United States v. Blocker, 612 F.3d 413, 416 (5th Cir.), cert. denied, 131 S. Ct. 623

(2010) (internal quotation marks and citation omitted). If his conviction for

failure to stop and leave information were not assessed a criminal history point,

his guidelines range would have been 70 to 87 months of imprisonment, rather

than the range of 77 to 96 months considered by the district court at sentencing.

Where, as here, the sentence imposed falls inside both the new guidelines

range and the guidelines range considered by the district court, “we do not

assume, in the absence of additional evidence, that the sentence affects a

defendant’s substantial rights.” Blocker, 612 F.3d at 416. Juarez-Rodriguez
No. 10-40714 c/w 10-40716

3

asserts thatthe district court was inclined to sentence him leniently, noting that

it imposed a sentence for his conviction that corresponded to the bottom of the

guidelines range and that it ordered eight months of his revocation sentence to

be run concurrently to the sentence for his conviction.

The district court considered and rejected Juarez-Rodriguez’s motion for

sentence below a guidelines range of 77 to 96 months of imprisonment, and there

is no evidence that the district court found that Juarez-Rodriguez should be

sentenced to the bottom of any guidelines range. See Blocker, 612 F.3d at 416-

17; Jasso, 587 F.3d at 714 n.11. The district court’s decision to order eight

months of Juarez-Rodriguez’s revocation sentence to be run concurrently reflects

that it found a total of 90 months of imprisonment to be appropriate. JuarezRodriguez has not satisfied his burden of showing a reasonable probability that

he would have received a lesser sentence. See Blocker, 612 F.3d at 416-17.

The district court’s judgments are AFFIRMED.