United States v. Pedro Juan-Solano , 654 F. App'x 673 ( 2016 )

Case: 15-40849 Document: 00513586972 Page: 1 Date Filed: 07/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40849 FILED
c/w No. 15-40859 July 11, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
PEDRO JUAN-SOLANO,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-2-1
USDC No. 1:14-CR-885-1
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant Pedro Juan-Solano pled guilty to one count of illegal reentry,
in violation of 8 U.S.C. § 1326. The district court sentenced him to 54 months
imprisonment followed by three years of supervised release. Juan-Solano also
received an additional 8-month sentence for violating the conditions of his term
of supervised release. For the first time on appeal, Juan-Solano argues that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40849 Document: 00513586972 Page: 2 Date Filed: 07/11/2016
No. 15-40849 c/w No. 15-40859
the district court erroneously assessed an extra criminal history point for a
2008 conviction. Because Juan-Solano did not object below, he must satisfy
the four prongs of plain error review:
First, there must be an error or defect—some sort of “[d]eviation
from a legal rule”—that has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by the appellant. Second,
the legal error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case means
he must demonstrate that it “affected the outcome of the district
court proceedings.” 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 affect[s] the fairness, integrity or public reputation of
judicial proceedings.” 1
Juan-Solano cannot prevail under this standard of review. As the
Government notes, the record is equivocal regarding the number of days in jail
that Juan-Solano served for the 2008 conviction. 2 That is, any error is not
“clear or obvious.” And “in asking us to exercise our discretion, [Juan-Solano]
points to nothing beyond the district court’s error and the increase in h[is]
sentence that the error may have caused.” 3 We remind that this Court has
warned that such a “per se fourth-prong argument” is insufficient as a matter
of law. 4 But regardless, we are not persuaded that the alleged error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
We AFFIRM the district court.
1 Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations in original) (citations
omitted) (quoting United States v. Olano, 507 U.S. 725, 732-34, 736 (1993)).
2 See United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir. 2008) (“We analyze
the district court’s error and the plainness of any error at the time of appellate consideration.”
(emphasis added)).
3 United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015); see also United States
v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) (“[W]e do not view the fourth
prong as automatic if the other three prongs are met.”).
4 Rivera, 784 F.3d at 1018.
2