United States v. Ezer Barrientos-Osorio ( 2020 )

Case: 19-10888 Document: 00515493525 Page: 1 Date Filed: 07/17/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10888
FILED
July 17, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EZER ROSEMBEL BARRIENTOS-OSORIO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-211-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Ezer Rosembel Barrientos-Osorio appeals the sentence imposed upon
revocation of his supervised release following his conviction for illegal reentry,
contending that the district court plainly erred by imposing a new, 22-month
supervised release term on a deportable alien without explanation, contrary to
U.S.S.G. § 5D1.1(c). Because Barrientos-Osorio did not object to his revocation
sentence, we review for plain error. See United States v. Jones, 484 F.3d 783,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10888 Document: 00515493525 Page: 2 Date Filed: 07/17/2020
No. 19-10888
792 (5th Cir. 2007). To show plain error, Barrientos-Osorio must identify (1) a
forfeited error (2) that is clear or obvious, and (3) that affects his substantial
rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he satisfies
the first three requirements, we have discretion to remedy the error if the error
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
We need not decide whether Barrientos-Osorio has shown clear or
obvious sentencing error because even if he could do so, his cursory and
misdirected arguments with respect to the third and fourth plain error prongs
are inadequate to warrant the exercise of our corrective discretion. See United
States v. Rivera, 784 F.3d 1012, 1019 n.3 (5th Cir. 2015); United States v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006); United States v. Clark, 2020 WL
3261697, at *1 (5th Cir. June 16, 2020). Contrary to his assertions, Molina-
Martinez v. United States, 136 S. Ct. 1338 (2016), is not dispositive. Because
Barrientos-Osorio has not met his affirmative burden to establish each plain
error prong, see id. at 1343, we AFFIRM the judgment.
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