IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50106

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO BAEZA-LOZANO,

Defendant-Appellant

Cons. w/ No. 12-50120

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

FRANCISCO BAEZA-LOZANO, also known as Francisco Baeza,

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:11-CR-303-1

USDC No. 7:06-CR-220-1

United States Court of Appeals

Fifth Circuit

F I L E D

January 4, 2013

Lyle W. Cayce

Clerk
No. 12-50106

c/w No. 12-50120

* 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.

2

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Francisco Baeza-Lozana (Baeza) pleaded guilty to illegal reentry following

deportation and was sentenced to 96 months of imprisonment and three years

of supervised release. At the time of the offense, Baeza was under supervised

release for 2007 conviction for heroin distribution in violation of 21 U.S.C.

§ 841(b)(1)(C). Immediately following the proceedings in the illegal reentry case,

the district court revoked Baeza’s supervised release and sentenced him to 24

months of imprisonment and three years of supervised release. Baeza appeals

both sentences. The appeals have been consolidated. 

For the first time on appeal, Baeza argues that the district court

procedurally erred when it ordered that his sentence for the illegal reentry run

consecutively to the sentence that the court had not yet imposed on the

revocation. Citing 18 U.S.C. § 3584(a) and United States v. Quintana-Gomez,

521 F.3d 495, 498 (5th Cir. 2008), he argues that the district court may impose

consecutive sentences only where the sentences are imposed at the same time,

or where the defendant already has been sentenced in an earlier case. 

We review Baeza’s argument for plain error only. To show plain error,

Baeza 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). To

demonstrate that a sentencing error affected his substantial rights, Baeza must

show that it affected the outcome in the district court. See United States v.

Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009). If he makes such a

showing, this court has the discretion to correct the error but only if it seriously
No. 12-50106

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3

affects the fairness, integrity, or public reputation of judicial proceedings. See

Puckett, 556 U.S. at 135. 

The facts of the instant case are distinguishable from those in QuintanaGomez because the instant case involved the same sentencing judge and back-toback sentencing proceedings. However, even assuming that this court’s holding

in Quintana-Gomez shows that the district court erred, Baeza cannot show that

the district court’s error affected his substantial rights because immediately

after the district court imposed the 96-month illegal reentry sentence, it

sentenced Baeza to 24 months of imprisonment on the revocation offense, and

it ordered that the revocation sentence run consecutively to the already imposed

illegal-reentry sentence. Accordingly, Baeza cannot make the showing required

to obtain relief under the plain error standard of review. See MondragonSantiago, 564 F.3d at 369. 

Baeza also challenges his revocation sentence, arguing that the sentence

of 24 months of imprisonment and three years of supervised release exceeds the

statutory maximum allowed by 18 U.S.C. § 3583(b). When a defendant’s

supervised release is revoked and the district court sentences the defendant to

a term of imprisonment followed by a term of supervised release, the term of

supervised release “shall not exceed the term of supervised release authorized

by statute for the offense that resulted in the originalterm of supervised release,

less than any term of imprisonment that was imposed upon revocation of

supervised release.” § 3583(h). Despite Baeza’s failure to object to the term of

supervised release in the district court, his argument that the sentence exceeds

the statutory maximum merits de novo review. See United States v. Vera, 542

F.3d 457, 459 (5th Cir. 2008) (noting that a sentence which exceeds the statutory

maximum constitutes plain error subject to de novo review). 

The Government agrees that a sentencing court must aggregate the

imprisonment term with the supervised release term; however, it challenges
No. 12-50106

c/w No. 12-50120

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Baeza’s contention that the maximum term of supervised release available for

the aggregate term was three years. The Government’s argument has merit. In

United States v. Jackson, 559 F.3d 368, 370 (5th Cir. 2009), this court held that

following the amendment of § 841(b)(1)(C) in 2002, the “general maximums of

§ 3583(b) do not apply to revocation sentencing when the original offense was a

conviction under § 841(b)(1)(C).” Id. at 372. 

Baeza next argues thatthe district court plainly erred in ordering that his

revocation sentence run consecutively to the illegal reentry sentence. He argues

that the district court failed to state its reasons for imposing the consecutive

sentence in open court during the revocation proceedings. He alternatively

argues thatthis court can reasonably infer thatthe district court relied upon the

reasons it gave during the illegal reentry proceedings in electing to run the

revocation sentence consecutively, and thatthose reasons made reference to two

sentencing factors that are patently improper in revocation cases. Because

Baeza did not object to the district court’s revocation sentence based on the

foregoing, we review this argument for plain error. See United States v. Davis,

602 F.3d 643, 646-47 (5th Cir. 2010). 

Under 18 U.S.C. § 3553(c), a district court must state “in open court” the

reasons for imposing a particular sentence. This articulation requirement also

applies to a district court’s decision whether to impose a consecutive or

concurrent sentence. United States v. Gore, 298 F.3d 322, 325 (5th Cir. 2002).

However, the failure to articulate oral reasons does not warrant relief under the

plain error standard of review where the appellant fails to establish an effect on

his substantial rights. See id. & n.2. Baeza makes no showing that the court’s

omission affected his substantial rights. Accordingly, he has not met the

showing required under the plain error standard. See Mondragon-Santiago, 564

F.3d at 364. Moreover, we reject Baeza’s assertion that we should infer that the
No. 12-50106

c/w No. 12-50120

5

reasons given during the prior illegal reentry proceedings were intended to

support the revocation sentence

Finally, Baeza correctly notes that the order revoking his supervised

release contains two clerical errors because it twice refers to the date of his

original judgment as January 23, 2009, rather than May 2, 2007. Accordingly,

we remand the case to the district court for correction of the clerical errors

pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 36. See United States v.

Powell, 354 F.3d 362, 371 (5th Cir. 2003). 

AFFIRMED and REMANDED