IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 November 3, 2009
                                 No. 08-11088
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ELISEO MENDOZA-HERRERA,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                         USDC No. 3:08-CR-176-ALL


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
      Eliseo Mendoza-Herrera appeals the 34-month sentence imposed following
his guilty plea conviction for possession with intent to use or transfer unlawfully
five or more authentication features, in violation of 18 U.S.C. § 1028(a)(3) and
(b)(2). In calculating Mendoza-Herrera’s sentencing guidelines range of 30 to 37
months of imprisonment, the district court included a nine-level enhancement
pursuant to U.S.S.G. § 2L2.1(b)(2)(C), based on the district court’s finding that



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-11088

Mendoza-Herrera’s offense conduct involved 100 or more documents. Mendoza-
Herrera contends that the district court erred in applying this enhancement.
      The district court made clear that it would have imposed the same 34-
month sentence even if it were incorrect about the application of the
§ 2L2.1(b)(2)(C) enhancement.      Because the district court did not commit
reversible error in imposing this alternative non-Guidelines sentence, we need
not address whether the § 2L2.1(b)(2)(C) enhancement was applicable here.
Mendoza-Herrera argues that his sentence may not be affirmed based on the
district court’s alternative sentence because the district court, in deciding the
alternative sentence, did not explicitly calculate or otherwise acknowledge what
the guidelines range would have been without the § 2L2.1(b)(2)(C) enhancement.
This argument is considered under the plain error standard of review because
it was not raised in the district court. See United States v. Ruiz-Arriaga, 

, 282 (5th Cir. 2009), cert. denied --- S.Ct. ----, 

(U.S.
Oct. 5, 2009) (No. 09-5203); United States v. Duhon, 

, 396 (5th Cir.
2008).
      To show plain error, Mendoza-Herrera must show an error that is clear or
obvious and that affects his substantial rights. See United States v. Baker, 

, 332 (5th Cir. 2008), cert. denied, 

(2009). If Mendoza-
Herrera makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See 

the ‘substantial rights’ prong, ‘in most
cases . . . the error must have been prejudicial: It must have affected the outcome
of the district court proceedings.’” 

(quoting United
States v. Olano, 

, 734 (1993)).       In light of the district court’s
comments at sentencing in support of its alternative sentence, Mendoza-Herrera
has not met his burden of showing that the outcome of the proceedings was
affected by any error by the district court in failing to consider the guidelines



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                               No. 08-11088

range that would have been applicable without the § 2L2.1(b)(2)(C)
enhancement. See 

     The judgment of the district court is AFFIRMED.




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