     Case: 18-10164      Document: 00515049920         Page: 1    Date Filed: 07/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 18-10164                          FILED
                                  Summary Calendar                    July 25, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ISRAEL ENRIQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:17-CR-216-11


Before HIGGINBOTHAM, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Israel Enriquez appeals the 360-month sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute a
controlled substance. He argues that the district court committed a clear or
obvious error that affected his substantial rights by miscalculating his
advisory guidelines range of imprisonment and imposing a sentence within
that range.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10164     Document: 00515049920       Page: 2   Date Filed: 07/25/2019


                                   No. 18-10164

      Because Enriquez failed to object in the district court to the calculation
of his base offense level or the sentence imposed, the challenge to the
procedural reasonableness of his sentence that he raises on appeal was not
preserved and is reviewed for plain error only.                See United States
v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). To prevail on plain
error review, Enriquez must show a forfeited error that is clear or obvious and
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, we have the discretion to correct the error
but will do so “only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citations omitted).
      It is undisputed that the quantities of methamphetamine (not actual)
were erroneously calculated and that, as a result, the marijuana equivalency
for those drug quantities was also miscalculated, resulting in an incorrectly
calculated base offense level and guidelines sentencing range. Thus, as the
Government concedes, Enriquez has shown a forfeited error that is clear or
obvious and has thus satisfied the first two prongs of the plain error analysis.
See Puckett, 556 U.S. at 135.
      To satisfy the third prong of the plain error analysis, “the defendant
ordinarily ‘must show a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.’”            United States v.
Randall, 924 F.3d 790, 796 (5th Cir. 2019) (quoting Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted)).
Absent the mathematical error, Enriquez’s total offense level would have been
reduced from 39 to 37, and his guidelines range would have been 292 to 365
months of imprisonment instead of 360 to 480 months of imprisonment. While
an error that results in a higher guidelines range “usually establishes a



                                         2
    Case: 18-10164    Document: 00515049920     Page: 3   Date Filed: 07/25/2019


                                 No. 18-10164

reasonable probability that a defendant will serve a prison sentence that is
more than necessary to fulfill the purposes of incarceration,” Randall, 924 F.3d
at 796 (internal quotation marks and citation omitted), that fact is not
dispositive of whether the error affected the defendant’s substantial rights.
Rather, “[a] defendant may not carry his plain error burden . . . if the
sentencing court nevertheless concluded the chosen sentence was appropriate
regardless of the correct Guidelines range or the sentence was based on factors
independent of the Guidelines.” Id. (internal quotation marks and citations
omitted).
      In this case, the district court not only concluded that a 360-month
sentence was appropriate even if the guidelines range was wrong but also
stated that the sentence was appropriate based on the factors set forth in
18 U.S.C. § 3553(a). Under the circumstances, there is no reason to believe
that the court would have imposed any sentence other than the chosen
sentence absent the mathematical error.
      Enriquez has not satisfied his burden of showing that the forfeited clear
error affected his substantial rights. See Puckett, 556 U.S. at 135; Randall,
924 F.3d at 796. Accordingly, the judgment of the district court is AFFIRMED.




                                       3
