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

No. 16

- 50948

UNITED STATES OF AMERICA,
Plaintiff

– Appellee,

v. KEVIN CORY CARLILE,
Defendant

– Appellant.

Appeal from the United States District Court for the Western District of Texas

Before BARKSDALE, DENNIS, * and ELROD, Circuit Judges. JENNIFER WALKER ELROD , Circuit Judge : Kev in Cory Carlile appeals his sentence following a felon in possession of a firearm conviction. He argues that the district court committed reversible error in calculating both his criminal history score under section 4A1.1 of the United States Sentencing Guidelines and his base offense le vel under section 2K2.1(a)(4)(A) of the Sentencing Guidelines

. Because the district court did not commit reversible error, we AFFIRM.

* Concurring in the judgment only. United States Court of Appeals Fifth Circuit 

### FILED March 13, 2018 Lyle W. Cayce Clerk Case: 16-50948 Document: 00514384253 Page: 1 Date Filed: 03/13/2018No. 16

- 50948

2 I. Carlile pleaded guilty to possessing a firearm aft er a felony conviction. When calculating Carlile’s criminal history score under se ction 4A1.1 of the Sentencing Guidelines , the presentence investigation report assigned tw o criminal history points for a driving while intoxicated (DWI) conviction , for which Carlile now c laims he s erved no prison time. The PSR reported that Carlile’s to tal criminal history score was 10 , and his criminal history category

was V

. W hen calculating Carlile’s base offense leve l under section 2K2.1(a)(4)(A ), and over Carlile’s objection, the PSR included , as a prior felon y conviction , a deferred adjudication conviction for aggravated assault causing serious bodily injury

. T he PSR reported that Carlile ’s total offense level was 17. B ased upon Carlile’s total offense level and criminal history category , the advisory guideline sentence was 46 to 57 months of in carceration. The district court sentenced Carlile to 46

- months imprisonment, to run consecutively to any sentence imposed upon revo cation of his probation for his conviction for aggravated assault causing bodily injury, followed by three years of supervis ed release. Carlile timely appealed. II. On appeal, Carlile argues that the district court committed error : (1) by assigning two criminal history points for his DWI conviction when calculating his criminal history score ; and (2) by treating his deferred adjudication for aggravated assault caus ing serious bodily injury as a prior felony conviction when calculating his base offense level. The parties agree on the two standards of review that apply. B ecause Carlile failed to object in the district court to the assessment of two criminal history point s for his DWI conviction, plain

- error review applies to t his first Case: 16-50948 Document: 00514384253 Page: 2 Date Filed: 03/13/2018No. 16

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3 claim

. See United States v. Martinez

- Rodriguez , 821 F.3d 659 , 662 (5th Cir. 2016). To prevail, Carlile must show: First, there must be an err or or defect

— some sort of “d eviation from a legal rule”

— that has not been intentionally relinquished or abandoned, i.e. , affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the district court proceedings.” Fourth and finally, 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. Prieto , 801 F.3d 547, 549

– 50 (5th Cir. 2015) (quoting Puckett v. United States , 556 U.S. 129, 135 (2009)). However, Carlile did object to the district court’s calculation of his base offense level under section 2K2.1(a)(4)(A)

. “ Where a defendant preserves error by objecting at sentencing , we review the sentencing court’s factual findings for clear error and its interpretation or application of the Sentencing Guidelines de novo. ” Martinez

- Rodriguez , 821 F.3d at 662 (quoting United States v. Gomez

- Alvarez , 781 F.3d 787, 791 (5th Cir. 2015) ). III. The first issue is whether the district court committed reversible plain error in calculating Carlile’s criminal history score. Under the Sentencing Guidelines, a defendant’s criminal history score is based on sentenc es imposed for prior offenses

. Under section 4A1.1(a), three points are added to a defendant’ s criminal history “for each prior sentence of imprisonment

exc eeding one year and one month,” and under section 4A1.1(b), two points are added “for each prior sentence of imprisonment of at least sixty days not counted in (a).” U.S.S.G. § 4A1.1 (a)

– (b) . Section 4A1.1(c) provides that only Case: 16-50948 Document: 00514384253 Page: 3 Date Filed: 03/13/2018No. 16

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4 one point is assessed “for each prior sentence not counted in (a) or (b),” up to a total of four points. Id. § 4A1.1(c)

. The next section of the Sentencing Guidelines defines “ sentence of imprisonment.” Id. § 4A1.2 (b)

. The commentary explains that “ [t] o qualify as a sentence of imprisonment, the defendant must have actually serve d a period o f imprisonment on such
sentence. . .

. ” Id. § 4A1.2 cmt. n. 2 (emphasis added). Carlile argues that he never “actually served” a term of imprisonment for his DWI offense , and so he should have received only one

— not two

— criminal his tory point fo r this offense

. The PSR reported that Carlile was sentenced to 364 days of confinement for the DWI offense , but it noted that the investigative and co urt records for the offense were not available. The supplemented record on appeal shows that Carlile was sent enced to 365 days in prison “with credit given for 365 days already served

. ” 1 According to Carlile, the “ 365 days already served” in the state’s order of conviction refers to the time Carlile spent in prison for a different sentence : a 21

- month criminal mischief sentence . Therefore, he argues that he never “actually served” a term of imprisonment for the DWI offense. We agree. T he government argues that the days credited against Carlile’s sentence for the DWI offense constitute time “actually s erved” for the DWI offense. The government does not contend that Carlile served time specifically for his DWI offense. According to the government, we should not “look beyond a judgment when . . . it explicitly states the sentence imposed is being satisf i ed by time served.” For this p roposition, the government cite s to United States v. Brown , 54 F.3d 234 (5th Cir. 1995), United States v. Realzola

- Ramirez , 556 F. App’x

1 As Carlile acknowledges, the district court did not have Carlile’s state court conviction records because the probation officer could n ot obtain them. Because the relevant issue is “whether there is plain error at the time of appellate consideration,” we consider the record as supplemented on appeal. United States v. Wikkerink , 841 F.3d 327, 332 (5th Cir. 2016) (quoting United States v . Martinez

- Vega , 471 F.3d 559, 562 (5th Cir. 2006)). Case: 16-50948 Document: 00514384253 Page: 4 Date Filed: 03/13/2018No. 16

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5 374 (5th Cir. 2014) , and United States v. Fernandez , 743 F.3d 453 (5th Cir. 2014). The se case s involve credit for time se rved : (1) in pre

- trial detention, see Fernandez , 743 F.3d at 457, and (2) in a partial prison sentenc e, see Brown , 54 F.3d at 240; Realzola

- Ramirez , 556 F. App’x at 377

. As the government acknowledges, however, these cases do not address the issue of time served on

a different offense

. Here, “the question is whether any time was actually served” on the sentence for Carlile’s DWI offense. Brown , 54 F.3d at 240. The state court ordered Ca rlile’s DWI sentence satisfied based on the time that he spent in prison for a criminal

- mischief offense

. B ecause the state court elected to give him credit for time served f rom this other sentence , Carlile did not spend a ny time in custody for his DWI offense

. See United States v. Buter , 229 F.3d 1077, 1079 (11th Cir. 2000) (“[The defendant] walked into and out of the state courtroom a free man. ”). We agree with the Sixth Circuit that “ [c] old reality informs us that a defendant who receives full credit for time served on an entirely separa te conviction does not in fact ‘actually serve’ any time for the offense i n question.” United States v. Hall , 531 F.3d 414, 419 (6th Cir. 2008). Because Carlile did not actually serve any time for his DWI offense, the district court erred in assigning Carlile two criminal history points based on this offense

. However, Carlile has not established that the district court’s error was clear or obvious

. See Pucke t t v. United States , 556 U .S. 129, 135 (2009) (“[T]he legal error must be clear or obvious, rather than subject to reasonable dispute.”)

. We have explained that an error is only plain if it is “so clear or obvious that ‘the trial judge and prosecutor were derelict in countenancing it, even absent the defendants timely assistance in detecting it.’” United States v. Trejo , 610 F.3d 308, 319 (5th Cir. 2010) (quoting United States v. Hope , 545 F.3d 293, 296 (5th Cir. 2008)). As discussed, we have determined that the Case: 16-50948 Document: 00514384253 Page: 5 Date Filed: 03/13/2018No. 16

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6 district court did err in assigning Carlile two criminal history points for this DWI offense , but we acknowledge that , absent direction from our court or a timely objection from the defendant , the district court could have reasonably interpreted section 4A1.1’s time serv ed requirement to make no distinction between the conviction at hand and a different conviction

. Moreover, Carlile has not offered a case from our circuit addressing whether a sentence of time served on a separate offense qualifies as a “sentence of impri sonment ” for assigning criminal history points under section 4A1.1

. See United States v. Miller , 406 F.3d 323, 330 (5th Cir. 2005) (“ Absent any precedent directly supporting [the defendant’s] contention, it cannot be s aid that the alleged error was ‘plain ’ for purposes of our review. ”) E stablishing plain error requires a showing that the error was clear under “ the law in place at the time of trial. ” Trejo , 610 F.3d at 319. Here, Carlile has not shown that the district court’s error was obvious at that t ime. “We ordinarily do not find plain error when we ‘have not previously addressed’ an issue.” United States v. Evans , 587 F.3d 667, 671 (5th Cir. 2009) (quoting United States v. Lomas , 304 F. App’x 300, 301 (5th Cir. 2008))

. T herefore , Carlile’s claim necessarily fails under plain

- error review. Even assuming arguendo that this claimed error was plain and affected Carlile’s substantial rights , under the second and third prong s of plain

- error review , Carlile’s arguments also fail because he cannot prevai l under the fourth prong. “ [W] e do not view the fourth prong of plain

- error review as automatic if the other three prongs are met.” United States v. Pena , 720 F.3d 561, 576 (5th Cir. 2013) (quoting United States v. Escalante

– Reyes , 689 F.3d 415, 425 (5th C ir. 2012 ) (en banc) ). “A court should correct a plain, forfeited error affecting substantial rights only where ‘the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’” United States v. Guillen

- Cruz , 853 F.3d 768, 775 (5th Cir. 2017) (quoting United States v. Case: 16-50948 Document: 00514384253 Page: 6 Date Filed: 03/13/2018No. 16

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7 Olano , 507 U.S. 725, 736 (1993)). The Supreme Court has instructed us that “the fourth prong is meant to be applied on a case

- specific a nd fact

- intensive basis. . . . [A nd] a ‘ per se a pproach to plain

- error r eview is flawed.’” United States v. John , 597 F.3d 263, 286 (5th Cir. 2010) (quoting Puckett , 556 U.S. at 142). Using this case

- by

- case, fact

- intensive approach, we have declined to correct errors where a sentencing disparity exists but other facts, such as a significant criminal history, are present. See , e.g. , United States v. Brown , 826 F.3d 835, 841 (5th Cir. 2016) (declining to exercise our discretion based on the defendant’s extensive criminal history and the district cou rt’s statements at sentencin g). Here, we decline to exercise our fourth

- prong discretion. Carlile’ s criminal history

— including two convictions for driving while intoxicated, aggravated assault, and criminal mischief

— weighs against correcting this

error. See United States v. Mendoza

- Velasquez , 847 F.3d 209, 213 (5th Cir. 2017) (“[The defendant’s] lengthy criminal history counsels against the Court rectifying any error in this case.”)

. Moreover, if Carlile’s criminal history score

were corrected, it would reduce his Guidelines range from 46 to 57 months to 37 to 46 months. He was sentenced to 46 months, and so at most, t here is a nine month disparity between the relevant Guidelines a t issue here. Indeed,

e ven applying the correct Guidelines range , the district court could still impose the same sentence: 46 months. In light of the totality of this record, we decline to exerci se our fourth prong discretion. See Brown , 826 F.3d at 841 (“We have consistently held that it is not necessary to correct an error if there is sufficient

e vidence in the record showing that the incorrect sentence was nevertheless fair.”) ; see also United States v. Ellis , 564 F.3d 370, 378 (5th Cir. 2009) (“Not Case: 16-50948 Document: 00514384253 Page: 7 Date Filed: 03/13/2018No. 16

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8 every error that increases a sentence need be corrected by a call upon plain error doctrine.”). As such , Carlile’s challenge also fails for this reason. IV. The next issue , which, as noted, Carlile preserved in the district court, is whether the district court erred in calculating Carlile’s offense level by treating his deferred adjudication convictio n for aggravated assault causing serious bodily injury as a felony conviction under section 2K2.1(a)(4)(A). As Carlile acknowledges, his argument here is foreclosed by our prior decision in United States v. Stauder , 73 F.3d 56 , 56 (5th Cir. 1996) ( determi ning that “for sentencing for a felon in possession of a firearm conviction, a Texas criminal deferred adjudication can be used for calculating the base offense level under the Sentencing Guidelines”)

. “It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a panel ’ s decision.” Burge v. Par. of St. Tammany , 187 F.3d 452, 466 (5th Cir. 1999). W e are bound by our precedent , and Carlile’s second claim fails, as well. V. Accordingly, because Carlile’s first argument fail s under prong two, and assuming it satisfies that prong as well as the third, fails under prong four of plain

- error review , and because Carlile’ s second argument is foreclosed by our precedent, we AFFIRM Carlile’s sentence. Case: 16-50948 Document: 00514384253 Page: 8 Date Filed: 03/13/2018