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:

Kevin 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 level 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

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I.

Carlile pleaded guilty to possessing a firearm after a felony conviction.

When calculating Carlile’s criminal history score under section 4A1.1 of the 

Sentencing Guidelines, the presentence investigation report assigned two 

criminal history points for a driving while intoxicated (DWI) conviction, for 

which Carlile now claims he served no prison time. The PSR reported that 

Carlile’s total criminal history score was 10, and his criminal history category 

was V. When calculating Carlile’s base offense level under 

section 2K2.1(a)(4)(A), and over Carlile’s objection, the PSR included, as a prior 

felony conviction, a deferred adjudication conviction for aggravated assault 

causing serious bodily injury. The PSR reported that Carlile’s total offense 

level was 17. Based upon Carlile’s total offense level and criminal history 

category, the advisory guideline sentence was 46 to 57 months of incarceration. 

The district court sentenced Carlile to 46-months imprisonment, to run 

consecutively to any sentence imposed upon revocation of his probation for his 

conviction for aggravated assault causing bodily injury, followed by three years

of supervised 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 causing 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. Because 

Carlile failed to object in the district court to the assessment of two criminal 

history points for his DWI conviction, plain-error review applies to this first 

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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 error or defect—some sort of “deviation 

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 affects 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 sentences 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 

exceeding 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 

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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 served a period of 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 history point for 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 court records for the offense were not available. The 

supplemented record on appeal shows that Carlile was sentenced 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.

The government argues that the days credited against Carlile’s sentence 

for the DWI offense constitute time “actually served” 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 satisfied by time 

served.” For this proposition, the government cites 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 not 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)).

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374 (5th Cir. 2014), and United States v. Fernandez, 743 F.3d 453 (5th Cir. 

2014). These cases involve credit for time served: (1) in pre-trial detention, see 

Fernandez, 743 F.3d at 457, and (2) in a partial prison sentence, 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 Carlile’s DWI sentence satisfied based on the time that he spent in 

prison for a criminal-mischief offense. Because the state court elected to give 

him credit for time served from this other sentence, Carlile did not spend any 

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 separate 

conviction does not in fact ‘actually serve’ any time for the offense in 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 Puckett 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 

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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 served 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 imprisonment” 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 said 

that the alleged error was ‘plain’ for purposes of our review.”) Establishing 

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 time. “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)). Therefore, 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 prongs of plain-error 

review, Carlile’s arguments also fail because he cannot prevail 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 Cir. 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. 

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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 and fact-intensive 

basis. . . . [And] a ‘per se approach to plain-error review 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 court’s statements at 

sentencing). 

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, there is a 

nine month disparity between the relevant Guidelines at issue here. Indeed, 

even 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 exercise 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 

evidence 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 

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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 conviction 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) (determining 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). We are bound by our 

precedent, and Carlile’s second claim fails, as well.

V.

Accordingly, because Carlile’s first argument fails 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.

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