Case: 12-40164       Document: 00512051937         Page: 1     Date Filed: 11/13/2012




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

                                                                            FILED
                                                                        November 13, 2012
                                     No. 12-40164
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DEVADIP CARLOS ESPERICUETA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-856-5


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Devadip Carlos Espericueta pleaded guilty to one count of conspiracy to
possess with intent to distribute five kilograms or more of cocaine. Espericueta
was sentenced to the statutory mandatory minimum sentence of 120 months of
imprisonment.       He contends that the district court procedurally erred in
computing his criminal history score. Specifically, he contends that under an
earlier version of the Guidelines, he would not have been assessed two criminal
history points for his assault and evading arrest convictions because they arose

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-40164

from the same criminal transaction. Espericueta contends that the district
court’s procedural error resulted in a sentence inconsistent with the 18 U.S.C.
§ 3553(a) factors and made him ineligible for a safety valve reduction.
      As an initial manner, the district court correctly applied the 2011 version
of the Sentencing Guidelines since that version was in effect at the time of
Espericueta’s sentencing and its application would not violate the Ex Post Facto
Clause. See U.S.S.G. § 1B1.11(a). According to the revised presentence report
(RPSR), Espericueta was arrested on September 7, 2001, for assault and evading
arrest. However, Espericueta was charged in separate charging instruments for
the crimes and was sentenced on separate dates. Thus, it was not improper to
count the sentences separately. See U.S.S.G. § 4A1.2(a)(2). Accordingly, the
district court did not commit any procedural error in assigning one criminal
history point to each of these convictions. See Gall v. United States, 

,
51 (2007). Moreover, even if Espericueta’s argument was valid and he should
have been awarded only one point for these convictions, he still would have a
total of two criminal history points thereby making him ineligible for a safety
valve reduction. See U.S.S.G. § 5C1.2(a)(1) (providing that a defendant may not
have more than one criminal history point).           Accordingly, Espericueta’s
argument regarding the calculation of his criminal history score is unavailing.
      Espericueta also contends that the district court procedurally erred by not
making specific findings regarding the calculation of his criminal history
category. He asserts that due to the error, “[i]t is impossible to determine the
number of criminal history points (other than Category II) that the district court
assessed” in his case. Because Espericueta raises this argument for the first
time on appeal, review is for plain error. See United States v. Mondragon-
Santiago, 

, 361 (5th Cir. 2009).
      In the instant case, the district court and defense counsel discussed
Espericueta’s criminal history and the applicability of a safety valve reduction.
The district court determined that Espericueta did not qualify for a safety valve

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                                  No. 12-40164

reduction due to his three criminal history points, thereby implicitly overruling
Espericueta’s objection to the RPSR. Espericueta did not raise any additional
arguments at the sentencing hearing. Before imposing sentence, the district
court adopted the findings of the RPSR. The district court also expressly noted
that Espericueta had a total offense level of 29, a criminal history category of II,
and an advisory guidelines range of 97 to 121 months. After the district court
sentenced Espericueta to the statutory mandatory minimum of 120 months of
imprisonment, the court stated that it had “consider[ed] those factors under . . .
[§] 3553(a) and concludes that a sentence within these Guidelines satisfies
them.”
      Espericueta has failed to show any procedural error in connection with his
sentence. See Rita v. United States, 

, 356 (2007). Further, even if
the court’s explanation was deficient, Espericueta has failed to show how a more
detailed explanation regarding the calculation of his sentence would have
changed his statutory mandatory minimum sentence. See Mondragon-Santiago,
564 F.3d at 365; see also United States v. Doggins, 

, 384 (5th Cir.
2011). Accordingly, the judgment of the district court is AFFIRMED. See Gall,
552 U.S. at 50.




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