United States v. Jesus Garcia-Monge

610 F. App'x 404

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 17, 2015
• Docket: 14-51120
• Status: Unpublished

Opinion

PER CURIAM: *

Jesus Manuel Garcia-Monge was convicted of illegal reentry and received a within-guidelines sentence of 41 months of imprisonment followed by a three-year term of supervised release. On appeal, Garcia-Monge challenges the procedural reasonableness of his sentence based on the district court’s reliance on an allegedly incorrect fact. Because Garcia-Monge’s request for a variance did not preserve the error he now complains of, our review is for plain error. See United States v. Neal, 578 F.3d 270, 272 (5th Cir.2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir.2007). To succeed on plain error review, Garcia-Monge 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, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id.

Because the question of whether the district court misstated the status of Garcia-Monge’s state sentence presented a factual issue which could have been resolved by the district court upon proper objection at sentencing, it cannot constitute plain error. See United States v. Claiborne, 676 F.3d 434, 438 (5th Cir.2012). Even if it could, and even assuming Garcia-Monge has demonstrated a forfeited error that was clear or obvious, see United States v. Kirklin, 701 F.3d 177, 178-80 (5th Cir.2012), he has not demonstrated that the error affected his substantial rights or that we should exercise our discretion to correct the error, see Puckett, 556 U.S. at 135, 129 S.Ct. 1423.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.