United States v. Juan Serrano , 640 F. App'x 328 ( 2016 )

Case: 15-50143 Document: 00513391074 Page: 1 Date Filed: 02/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50143
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 22, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JUAN PABLO SERRANO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-456-1
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Juan Pablo Serrano pleaded guilty to illegal reentry following removal,
in violation of 8 U.S.C. § 1326. His presentence report reflected a base offense
level of eight, which was reduced by three levels under U.S.S.G. § 3E1.1 for
acceptance of responsibility and increased by eight levels under
§ 2L1.2(b)(1)(C) because he had been deported previously after being convicted
of an aggravated felony. The district court imposed a within-guidelines
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50143
sentence of 38 months imprisonment followed by a three-year term of
supervised release. Serrano did not object to the sentence but timely filed a
notice of appeal.
On appeal, Serrano challenges only his sentence, contending that the
district court erred by applying the eight-level increase to his base offense level
under § 2L1.2(b)(2)(C). He argues that his prior Ohio conviction for grand theft
of a motor vehicle, in violation of Ohio Rev. Code § 2913.02, does not qualify as
an aggravated felony within the meaning of U.S.S.G. § 2L1.2(b)(1)(C).
The government contends that Serrano did not preserve this issue for
appeal. “To preserve an issue for review on appeal, the defendant’s objection
must fully apprise the trial judge of the grounds for the objection so that
evidence can be taken and argument received on the issue.” United States v.
Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995). “A party must raise a claim of error
with the district court in such a manner so that the district court may correct
itself and thus . . . obviate the need for our review.” United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Here, in both his
sentencing memorandum and at sentencing, Serrano raised factual challenges
to some of the offenses included in his criminal history—although, notably, not
to his Ohio theft conviction—but did not object to the application of the eight-
level enhancement. He did state, at one point, “[I]n my criminal record, there
are no aggravated convictions,” but he made this comment in the context of his
factual challenge to his criminal history. Moreover, even when district court
noted that “there is a difference between criminal history category and the plus
8 enhancement” and asked specifically about the “[p]lus 8 enhancement,”
Serrano and his counsel both focused on his criminal history. Serrano’s passing
statement that he had no aggravated convictions was insufficient to apprise
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No. 15-50143
the district court of a dispute over the applicability of the enhancement. See
Musa, 45 F.3d at 924 n.5. Thus, we review for plain error.
We will not correct an error that the defendant failed to raise in the
district court unless there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
Even if all three conditions are satisfied, we have discretion to correct the error
“only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Whether a theft conviction under Ohio Rev. Code § 2913.02 qualifies as
an aggravated felony is an issue of first impression for this court. When we
have not previously addressed an issue, we ordinarily do not find plain error.
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). Furthermore,
Serrano has not addressed why the purported error would be clear or obvious,
nor has he made any argument as to why we should exercise our discretion in
this case. Thus, we conclude that Serrano has failed to carry his burden as to
either the second or fourth prong of plain error review. See, e.g., United States
v. Williams, 620 F.3d 483, 496 (5th Cir. 2010) (concluding that a “single
sentence of argument” as to the fourth prong was “insufficient to demonstrate
that the alleged error affected the fairness, integrity, or public reputation of
judicial proceedings”). Serrano has failed to show that the district court
committed reversible plain error.
The judgment of the district court is AFFIRMED.
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