UNITED STATES OF AMERICA v. PEDRO JUAN SOLANO (2016)

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 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.

FOOTNOTES

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.

PER CURIAM:*