Case: 20-20296 Document: 00515849433 Page: 1 Date Filed: 05/05/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 5, 2021 No. 20-20296 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Rafael Garcia-Servin, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 4:20-CR-75-1 Before Ho, Oldham, and Wilson, Circuit Judges. Per Curiam:* Rafael Garcia-Servin pled guilty to one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), and was sentenced to an above-guidelines sentence of twenty-four months of imprisonment followed by one year of supervised release. Garcia-Servin now appeals, contending his sentence is procedurally and substantively unreasonable. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-20296 Document: 00515849433 Page: 2 Date Filed: 05/05/2021 No. 20-20296 We review sentencing decisions using a “bifurcated review process,” first examining “whether the district court committed any significant procedural error,” then considering “the substantive reasonableness of the sentence.” United States v. Nguyen, 854 F.3d 276, 280 (5th Cir. 2017) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). First, Garcia-Servin argues that the district court committed a significant procedural error when it misinterpreted his presentence report to construe that he had three prior removals, as opposed to two, and relied on that misinterpretation in imposing an upward variance on his sentence. For a preserved challenge to the procedural reasonableness of a sentence, we review the district court’s application of the guidelines de novo and its findings of fact for clear error. Id. However, if a defendant fails to preserve a claim of procedural error in the district court, plain error review applies. United States v. Williams, 620 F.3d 483, 493 (5th Cir. 2010); see also Puckett v. United States, 556 U.S. 129, 135 (2009). Here, we review Garcia-Servin’s challenge for plain error, as he has failed to preserve the error for appeal. 1 See Williams, 620 F.3d at 493. Garcia-Servin’s passing statement about having been “kicked out twice,” in response to the district court’s question during his sentencing hearing about his intentions to remain in Mexico, did not give the district court notice about the potential issue for appeal. See United States v. Dominguez-Alvarado, 695 F.3d 324, 327–28 (5th Cir. 2012) (observing that 1 It appears Garcia-Servin affirmatively waived this point of error, rather than merely forfeited it. “Waived errors are entirely unreviewable, unlike forfeited errors, which are reviewable for plain error.” United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). Here, defense counsel agreed during the sentencing hearing that “Yes, your Honor . . . the [c]ourt is correct” that Garcia-Servin was thrice removed. That is more than a sufficient basis to find waiver. In this case, however, the district court and defense counsel premised their agreement on an ambiguity in the PSR, …
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