     Case: 12-41415       Document: 00512343609         Page: 1     Date Filed: 08/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 16, 2013
                                     No. 12-41415
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LORENZO NAVARRO-GARCIA, also known as Lorenzo Garcia,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-500-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Lorenzo Navarro-Garcia (Navarro) appeals the 70-month sentence
imposed by the district court following his guilty plea to being found knowingly
and unlawfully present in the United States after having been deported. He
argues that the sentence was procedurally unreasonable because the district
court mistakenly failed to fulfill its intention to award him a downward variance
beyond the one-level variance relating to his acceptance of responsibility.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41415     Document: 00512343609     Page: 2   Date Filed: 08/16/2013

                                  No. 12-41415

Navarro acknowledges that because he failed to object in the district court to the
error he now raises, his argument is reviewed for plain error.
      Under plain error review, Navarro 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). If he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      “This court has held that questions of fact capable of resolution by the
district court upon proper objection at sentencing can never constitute plain
error.” United States v. Conn, 657 F.3d 280, 284 (5th Cir. 2011) (internal
quotation marks and citation omitted). Divining the district court’s intent in
selecting a sentence arguably is a question of fact that could have been resolved
if a proper objection had been made, and as such, it could never be plain error.
In any event, Navarro has failed to show that the district court made a clear or
obvious error in selecting his sentence. See Puckett, 556 U.S. at 135. This is
because Navarro has not shown that his interpretation of the district court’s
remarks at the sentencing hearing is the only plausible interpretation of those
remarks. In light of Navarro’s failure to show an error that is plain, we do not
examine the remaining elements of the plain error test.
      AFFIRMED.




                                        2
