United States Court of Appeals

for the Fifth Circuit

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No. 22-40455

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United States of America, 

Plaintiff—Appellee,

versus

Fransi Danilo Lainez Garcia,

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 2:22-CR-161-1

______________________________

Before Elrod, Ho, and Oldham, Circuit Judges.

Per Curiam:

*

Fransi Danilo Lainez Garcia challenges his sentence for the crime of 

unlawfully re-entering the United States after deportation. He failed to raise 

the alleged sentencing error in district court, so we review only for plain 

error. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). 

Finding that the alleged error is neither clear nor obvious, we affirm. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 31, 2023

Lyle W. Cayce

Clerk

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No. 22-40455

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I. 

After his arrest in 2015, Lainez Garcia was deported in 2017. Between 

his arrest and deportation, Lainez Garcia committed a series of sex crimes

involving minors. He pleaded guilty to corruption of minors and unlawful 

contact with a minor, both felonies, as well as to the misdemeanor of indecent 

assault. On October 7, 2016, he was sentenced on all three offenses in state 

court and given six years’ probation as punishment for the offense of unlawful 

contact.

In 2022, Lainez Garcia was arrested in Texas and charged with illegal 

re-entry. He pleaded guilty to the illegal re-entry charge, and the sentencing 

report assigned him a sentencing level of twelve. Of the twelve points, two 

points were allotted because, at the time of his latest arrest, Lainez Garcia 

was still under a six-year probation sentence for the crime of unlawful 

contact. This appeal centers on these two criminal history points, which 

Lainez Garcia failed to contest in district court. With these two points, the 

Guidelines range was between fifteen and twenty-one months. Without 

these two points, the Guidelines range would have been twelve to eighteen 

months.

II. 

A.

Lainez Garcia argues that the district court erred by adding two 

criminal history points under Section 4A1.1(d) of the Sentencing Guidelines. 

That provision adds two points “if the defendant committed the instant 

offense while under any criminal justice sentence, including probation.” 

U.S.S.G. § 4A1.1(d) (emphasis added). The Guidelines commentary, in 

turn, defines a “criminal justice sentence” as “a sentence countable under 

§4A1.2.” Id. § 4A1.1, cmt. n.4 (emphasis omitted). 

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So only “a sentence countable under §4A1.2” triggers the additional 

two points at issue.

Lainez Garcia contends that his sentence was not “countable.” That 

is because he takes “countable” to mean “counted separately.” Id. §

4A1.2(a)(2). And his sentence for unlawful contact was not “counted 

separately.” It was imposed on the same day as the sentences for corruption 

of minors and indecent assault, so all three sentences were “treated as a 

single sentence.” Id.

The Government counters that Lainez Garcia’s sentence for unlawful 

contact was in fact “countable.” That is because it was “counted” together

with the sentences for corruption of minors and indecent assault. On the 

Government’s view, the “countable” doesn’t mean “counted separately”: 

it just means “counted.” See id. § 4A1.2(c) (“Sentences for all felony 

offenses are counted. Sentences for misdemeanor and petty offenses are 

counted . . . .”).

B.

We need not decide which interpretation is correct. As Lainez Garcia 

concedes, he failed to object to the two-point enhancement in district court, 

so our review is only for plain error. See Fed. R. Crim. P. 52(b) (“A plain 

error that affects substantial rights may be considered even though it was not 

brought to the court’s attention.”). 

For a criminal defendant to qualify for relief under this standard, he 

“must show (1) that the district court committed an error (2) that is plain and 

(3) affects his substantial rights and (4) that failure to correct the error would 

‘seriously affect the fairness, integrity or public reputation of judicial 

proceedings.’” United States v. Sanchez-Hernandez, 931 F.3d 408, 410 (5th 

Cir. 2019) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)). See 

also Puckett v. United States, 556 U.S. 129, 135 (2009) (citing United States v. 

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Olano, 507 U.S. 725, 734 (1993)) (“[T]he legal error must be clear or obvious, 

rather than subject to reasonable dispute.”).

Assuming arguendo that the district court erred by adding the two 

points, we hold that the error was neither clear nor obvious. There is no onpoint circuit precedent addressing the meaning of the provisions at issue in 

this case. And without on-point, binding precedent, the defendant normally 

cannot show that an error was plain. See United States v. Miller, 406 F.3d 323, 

330 (5th Cir. 2005) (“Absent any precedent directly supporting [the criminal 

defendant’s] contention, it cannot be said that the alleged error was ‘plain’

for purposes of our review.”). 

There are exceptions to the rule that plain error requires controlling 

precedent. In rare cases, “a straightforward application of the guidelines”—

an “uncomplicated resort to the language” at issue—leads us to conclude 

that the district court’s error was clear. United States v. Torres, 856 F.3d 

1095, 1099 (5th Cir. 2017). This is not such a case. The relationship between 

the relevant provisions is complicated—even confusing. And even assuming

that Lainez Garcia’s interpretation of the Guidelines is right, we conclude

that the Government’s position is reasonable. Given this reasonable dispute, 

any error cannot be plain.

* * *

Because Lainez Garcia fails to show that the district court’s alleged 

error was plain, we AFFIRM the district court’s sentence.

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