IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50895

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

RICKY MENDOZA RODRIGUEZ, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 7:07-CR-39-1 

Before JONES, WIENER, and CLEMENT, Circuit Judges. 

PER CURIAM:*

 Defendant-Appellant Ricky Mendoza Rodriguez appeals the sentence 

imposed on the revocation of his supervised release. The district court 

sentenced him above his guidelines range to 36 months of imprisonment, 

followed by eight years of supervised release. Rodriguez argues that the

district court committed plain error in sentencing him because it considered

improper, irrelevant, and unsupported factors. Specifically, he contends that 

 

* 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

Fif h Circuit

FILED

June 8, 2017

Lyle W. Cayce

Clerk

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his sentence was based on the district court’s unsupported belief that he 

presented false information about himself, improper consideration of the fact 

that he had children with three women in non-marital relationships, and 

improper consideration of the severity of his original offense of conviction. 

We review Rodriguez’s arguments under the plain error standard 

because he did not object to his sentence in the district court. See United States 

v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009). To succeed on plain error 

review, Rodriguez must show a forfeited error that is clear or obvious and that 

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, we have the discretion to correct the error 

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

proceedings. See id. 

Rodriguez has not demonstrated plain error in this case. With respect 

to his contention that the district court erroneously faulted him for fabricating 

stories, we conclude that Rodriguez made several factual statements which the 

district court could have disbelieved as self-serving based on an adverse 

credibility finding, such as his statements that he intended to get married, 

absconded out of care for his family, and was law-abiding during the nearly 

five years he absconded. Credibility “determinations in sentencing hearings 

are peculiarly within the province of the trier-of-fact.” United States v. Davis, 

754 F.3d 278, 285 (5th Cir. 2014). 

Next, Rodriguez contends that it was improper for the district court to 

consider the fact that he had children with three women in non-marital 

relationships because such a circumstance was not illegal, did not violate 

Rodriguez’s supervised release conditions, and fell within his constitutionally 

protected rights to engage in non-marital sex and to bear children regardless 

of wedlock. “To be ‘plain,’ legal error must be clear or obvious, rather than 

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subject to reasonable dispute.” United States v. Warren, 720 F.3d 321, 326-27

(5th Cir. 2013) (internal quotation marks and citation omitted). The cases 

cited by Rodriguez in support of this argument do not directly address whether 

a district court is prohibited at sentencing from considering a defendant’s 

relationship to his children born out of wedlock and their mothers. Rodriguez 

has not shown that the law is settled on this issue and thus has not satisfied 

his burden of demonstrating clear and obvious error under plain error review. 

See Warren, 720 F.3d at 326-27. 

Furthermore, “a sentencing error occurs when an impermissible 

consideration is a dominant factor in the court’s revocation sentence, but not 

when it is merely a secondary concern or an additional justification for the 

sentence.” United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015). In 

pronouncing the sentence, the district court referenced several factors that 

Rodriguez does not contest, including Rodriguez’s use of alcohol, arrest for 

driving while intoxicated, and the fact that he absconded for 56 months. It is 

at least equally plausible that the uncontested reasons were the primary bases 

for Rodriguez’s above-guidelines sentence and that the issues he challenges 

were nothing more than a secondary concern or additional justification for the 

sentence. See Rivera, 784 F.3d at 1017. Because Rodriguez did not object to 

alert the district court to clarify itself, we cannot conclude that his sentence 

was based on any improper or irrelevant consideration of his relationship with 

his children and their mothers. See United States v. Hernandez-Martinez, 485 

F.3d 270, 274 (5th Cir. 2007).

Rodriguez’s final argument concerns the following comment by the 

district court about his original conviction: “He has a very serious crime of 

dealing with crack cocaine for which he got sentenced, a very adequate 

sentence at the time.” This comment does not show that the seriousness of 

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Rodriguez’s original conviction, if it was a consideration at all, was a dominant 

factor in the court’s revocation sentence rather than a secondary or additional 

concern. See Rivera, 784 F.3d at 1017; Hernandez-Martinez, 485 F.3d at 274.

In addition, Rodriguez also has not demonstrated an effect on his 

substantial rights with respect to any of the factors he challenges. To show 

that a sentencing error affected his substantial rights, an appellant must 

demonstrate a reasonable probability that he would have received a lesser 

sentence but for the error. Rivera, 784 F.3d at 1018. Rodriguez has not shown 

that there is evidence of prejudice in the record. His assertion that the extent 

of the upward variance suggests that his sentence was influenced by the 

district court’s consideration of improper factors is speculative and insufficient 

to demonstrate a reasonable probability that he would have received a lesser 

sentence but for the considerations he challenges. See United States v. 

Castaneda-Lozoya, 812 F.3d 457, 460 (5th Cir. 2016). 

Finally, Rodriguez has not shown that we should exercise our discretion 

on the grounds that any error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings. See Puckett, 556 U.S. at 135. The record 

provides support that the decision not to remand for resentencing would not 

result in a miscarriage of justice. United States v. Wikkerink, 841 F.3d 327, 

339 (5th Cir. 2016). Accordingly, the judgment of the district court is

AFFIRMED. 

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