IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41274

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

GERMAN HERNANDEZ-LOPEZ, also known as Luis Carrasco,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:16-CR-855-1

Before BARKSDALE, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

German Hernandez-Lopez pleaded guilty to being present illegally in the 

United States after removal, in violation of 8 U.S.C. § 1326(a), (b). He was 

sentenced, pursuant to a downward departure, to, inter alia, 37 months’

imprisonment, in part due to the district court’s assessing criminal-history 

points for Hernandez’ 2007 Indiana conviction and sentence for illegal 

consumption of alcohol by a minor, a Class C misdemeanor offense he 

 

* 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

Fifth Circuit

FILED

August 1, 2017

Lyle W. Cayce

Clerk

 Case: 16-41274 Document: 00514097759 Page: 1 Date Filed: 08/01/2017
No. 16-41274

2

committed at age 18. See Ind. Code § 7.1-5-7-7(a)(2); Ind. Code § 7.1-1-3-25

(2006) (defining “minor”). Hernandez maintains this conviction and sentence 

should not have been considered in calculating his advisory Sentencing 

Guidelines range because it was a “[j]uvenile status offense[]”, not to be 

included pursuant to Guideline § 4A1.2(c)(2).

As Hernandez concedes, he did not raise this issue in district court; 

therefore, as he also concedes, review is only for plain error. E.g., United States 

v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, 

Hernandez must show a forfeited plain (clear or obvious) error that affected 

his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If 

he does so, we have the discretion to correct the reversible plain error, but

should do so only if it “seriously affect[s] the fairness, integrity or public 

reputation of judicial proceedings”. Id.

Guideline § 4A1.2(c)(2) lists “[j]uvenile status offenses and truancy” 

among offenses that are “never counted” in calculating the advisory Guidelines 

sentencing range. In determining whether an unlisted offense is similar to an 

offense listed in § 4A1.2(c)(2), courts are to use “a common sense approach that 

includes consideration of relevant factors”. U.S.S.G. § 4A1.2, cmt. n.12(A). 

Factors to consider include:

(i) a comparison of punishments imposed for the listed and unlisted 

offenses; (ii) the perceived seriousness of the offense as indicated 

by the level of punishment; (iii) the elements of the offense; (iv) the 

level of culpability involved; and (v) the degree to which the 

commission of the offense indicates a likelihood of recurring 

criminal conduct.

Id.; see United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991).

Hernandez attempts to compare the punishments available for his prior

Indiana offense to the punishment available under Indiana law for other Class 

C violations that theoretically could be characterized as juvenile-status 

 Case: 16-41274 Document: 00514097759 Page: 2 Date Filed: 08/01/2017
No. 16-41274

3

offenses. Undercutting his attempted comparison, however, is Indiana’s 

distinguishing between Class C infractions and Class C misdemeanors. 

Compare, e.g., Ind. Code § 35-46-1-10.5(a) (possession of tobacco by a person 

under 18, a “Class C infraction”), with Ind. Code § 7.1-5-7-7(a) (possession or 

consumption of alcohol by a minor, a “Class C misdemeanor”). Class C 

misdemeanors―of which Hernandez was convicted―are punishable by both a 

fine and up to 60 days’ imprisonment, while Class C infractions are only 

punishable by a fine. See Ind. Code § 35-50-3-4 (Class C misdemeanors); Ind. 

Code § 34-28-5-4(c) (infractions). This distinction suggests Hernandez’ 

conviction was more serious than the other juvenile offenses he cites. 

Moreover, the misdemeanor punishment given Hernandez, 60 days’

imprisonment, obviously denotes a higher level of severity than a monetary 

fine and “serves as a reasonable proxy for the perceived severity of the crime”. 

United States v. Reyes-Maya, 305 F.3d 362, 367 (5th Cir. 2002) (citation 

omitted). Given the above, at least two factors of the above-listed five relevant 

factors weigh against Hernandez. Even assuming, arguendo, the remaining 

three factors weigh in his favor, the outcome is not clear, as no single factor is 

dispositive. United States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).

Our court has not previously addressed whether the Indiana statute at 

issue qualifies as a juvenile-status offense, and we ordinarily do not find plain 

error in the absence of controlling precedent. United States v. Evans, 587 F.3d 

667, 671 (5th Cir. 2009). Further, an error is not plain where the defendant’s 

theory requires the extension of precedent. United States v. Narez-Garcia, 819 

F.3d 146, 152 (5th Cir.), cert. denied, 137 S. Ct. 175 (2016). In short, Hernandez 

has not established the requisite clear or obvious error.

AFFIRMED.

 Case: 16-41274 Document: 00514097759 Page: 3 Date Filed: 08/01/2017