IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40877

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CESAR RAMIREZ-MATA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:09-CR-267-1

Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:

*

Cesar Ramirez-Mata pleaded guilty to one count of conspiracy to

possess with intent to distribute less than 50 kilograms of marijuana and one

count of possession with intent to distribute less than 50 kilograms of

marijuana, in violation of 21 U.S.C. § 841. He was sentenced to two 46-month

terms of imprisonment, to run concurrently, to be followed by two three-year

terms of supervised release, also to run concurrently. He now appeals his

sentence, arguing that the district court erred in its calculation of the

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2010

Lyle W. Cayce

Clerk

 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.

Case: 09-40877 Document: 00511329794 Page: 1 Date Filed: 12/22/2010
No. 09-40877

advisory sentencing range by treating him as a career offender under

U.S.S.G. § 4B1.1. Under that guideline, “[a] defendant is a career offender if,”

inter alia, he “has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” Id. § 4B1.1(a). Ramirez-Mata

argues that the district court erred when it treated his prior offense under

Tex. Penal Code § 22.011(a)(2) as a crime of violence, because that statute

“prohibit[s] consensual sexual contact with, or penetration of, a person under

17 years old.” United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004).

Without that prior offense, he would not have qualified as a career offender.

Because Ramirez-Mata’s counsel failed to raise this issue in the district

court, it is reviewed for plain error. See Puckett v. United States, 129 S. Ct.

1423, 1429 (2009) (citing Fed. R. Crim. P. 52(b)).

Rule 52(b) review — so-called “plain-error review” — involves

four steps, or prongs. 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. [United States v. Olano, 507 U.S. 725,

732-33 (1993).] Second, the legal error must be clear or obvious,

rather than subject to reasonable dispute. [See id. at 734.] Third,

the error must have affected the appellant’s substantial

rights . . . . 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.” [Id. at 736 (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936)).]

Puckett, 129 S. Ct. at 1429. We will assume for the sake of argument that the

district court made an error that was clear or obvious, because we conclude

that Ramirez-Mata does not satisfy the third prong.

At the third prong of plain error review, when a sentencing error is at

issue, a defendant must “show that the error affected his substantial rights

by ‘undermin[ing] confidence in the outcome.’” United States v. Blocker, 612

2

Case: 09-40877 Document: 00511329794 Page: 2 Date Filed: 12/22/2010
No. 09-40877

F.3d 413, 416 (5th Cir.) (per curiam) (alteration in original) (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (in turn quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984))), cert. denied, 2010 WL

4156179 (2010). “[T]his requires demonstrating a ‘reasonable probability

that, but for the district court’s misapplication of the Guidelines, [the

defendant] would have received a lesser sentence.’” Id. (quoting United States

v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)). Ramirez-Mata does not have

to show by a preponderance of the evidence that he would have received a

lower sentence if the district court had not misapplied the sentencing

guidelines. “The reasonable-probability standard is not the same as, and

should not be confused with, a requirement that a defendant prove by a

preponderance of the evidence that but for error things would have been

different.” Dominguez Benitez, 542 U.S. at 83 n.9 (citing Kyles v. Whitley, 514

U.S. 419, 434 (1995)).

Because the district court treated Ramirez-Mata’s prior conviction as a

crime of violence, it classified him as a career offender under U.S.S.G.

§ 4B1.1. This had no effect on his offense level, which was calculated at 15

based on the quantity of marijuana involved and a reduction for acceptance of

responsibility; however, the career offender designation did set his criminal

history category at VI when it would otherwise have been V. The error thus

resulted in a sentencing guidelines range of 41-51 months when the range

should have been 37-46 months. The sentence actually imposed by the

district court was 46 months — the exact middle of the erroneous range, but

the very top of the correct range.

In previous cases involving sentences “fall[ing] within both the correct

and incorrect guideline ranges,” we have addressed the third prong of plain

error review in a “highly fact sensitive” way. United States v. CampoRamirez, 379 F. App’x 405, 409 (5th Cir. 2010) (unpublished). Compare

3

Case: 09-40877 Document: 00511329794 Page: 3 Date Filed: 12/22/2010
No. 09-40877

United States v. Jones, 596 F.3d 273, 277-79 (5th Cir. 2009) (declining to

vacate a sentence), with United States v. Price, 516 F.3d 285, 289 (5th Cir.

2008) (vacating and remanding). In this case, at the sentencing hearing, the

district judge commented that he found 46 months to be a “reasonable”

sentence; however, he also twice noted that after carefully considering both

sides’ arguments, he was imposing a sentence at the midpoint of the incorrect

range on which he relied. Defense counsel’s strongest argument was that the

career offender designation overstated the seriousness of Ramirez-Mata’s

criminal history because it was predicated on the prior conviction under

§ 22.011(a)(2), which involved only consensual sex with a teenage girl who

thereafter, as an adult, continued to be in a long-term relationship with

Ramirez-Mata. If the district court had used the correct sentencing range,

defense counsel would have been deprived of his strongest argument because

the career offender designation would no longer have been at issue. Thus, it

is likely that the district court would still have found 46 months to be a

reasonable sentence. Ramirez-Mata has not shown a reasonable probability

that he would have received a lower sentence.

We therefore AFFIRM the judgment of the district court.

4

Case: 09-40877 Document: 00511329794 Page: 4 Date Filed: 12/22/2010