(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_______________
No. 93-2640
No. 93-2646
(Summary Calendar)
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAM AHMAD KHEIR,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Texas
(CR-H-93-136 & CR-H-90-121-01)
_______________________________________________
(April 13, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Sam Ahmad Kheir pled guilty to failing to appear for
sentencing, see 18 U.S.C. § 3147(a)(1) (1988). The district court
imposed a sentence of fifteen months' imprisonment and three years'
supervised release, to run consecutively to the sentence for his
underlying offense. Kheir appeals from his sentence for failure to

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appear; we affirm.
I
After Kheir pled guilty to and was convicted of conspiracy to
commit robbery against the United States, see 18 U.S.C. § 371
(1988), and unlawful possession with intent to distribute heroin,
see 21 U.S.C. § 841(a)(1),(b)(1)(C) (1988), he failed to appear for
sentencing. He was arrested at the United States-Canadian border
and returned to the Southern District of Texas. The district court
sentenced Kheir to seventy-five months' imprisonment on the
conspiracy count, and a concurrent sixty months' imprisonment on
the heroin count. The court also sentenced him to three years of
supervised release.
Immediately following that sentencing hearing, the district
court rearraigned Kheir on a failure-to-appear charge. Kheir pled
guilty. The court found his total offense level under the
Sentencing Guidelines to be fifteen and his criminal history to be
category II, resulting in a guideline range of twenty-one to
twenty-seven months. Kheir did not object to these findings. The
court then sentenced him to twenty-one months' imprisonment and
three years' supervised release, stating that "[t]he sentence for
the conviction is consecutive to the prior sentence imposed for
[the conspiracy and drug convictions]." Kheir did not object to
the sentence.
Kheir now appeals his sentence on the failure-to-appear
conviction, contending that the district court erred in (1) finding
his criminal history to be category II, (2) failing to group the

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1 Olano, ___ U.S. at ___, 113 S. Ct. at 1777 ("The first limitation on
appellate authority under Rule 52(b) is that there indeed be an `error.'"); see
also Calverley, 37 F.3d at 162 (stating that first element of analysis requires
that there be error); United States v. Rodriguez, 15 F.3d 408, 415 (5th Cir.
1994) (same).
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failure-to-appear charge with the counts for the underlying
offenses, and (3) imposing consecutive terms of supervised release.
II
Parties must object to errors in the district court in a
timely manner, otherwise they risk forfeiture of the right impinged
upon by the error. United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994) (en banc) ("[T]he failure of a litigant to assert
a right in the trial court likely will result in its forfeiture."),
cert. denied, 63 U.S.L.W. 3643 (U.S. Feb. 27, 1995). Kheir failed
to object to either the district court's findings or his sentence.
"In exceptional circumstances, appellate courts may, in the
interests of justice, notice errors to which no objection has been
made. Such circumstances are sharply circumscribed by the plain
error standard . . . ." Id. Accordingly, we review his sentence
for plain error. See Fed. R. Crim. P. 52(b) ("Plain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.").
In determining whether the district court committed plain
error, we conduct a two-part analysis. United States v. Olano, ___
U.S. ___, ___, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993).
First, we determine if there was error at all,1 and if so, whether

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2 Olano, ___ U.S. at ___, 113 S. Ct. at 1777 (requiring plain error and
stating that "`[p]lain' is synonymous with `clear' or, equivalently,
`obvious.'"); Calverley, 37 F.3d at 162-63 (stating that plain , `[a]t a
minimum,' contemplates an error which was `clear under current law' at the time
of trial." (quoting Olano, ___ U.S. at ___, 113 S. Ct. at 1777)).
3 Olano, ___ U.S. at ___, 113 S. Ct. at 1777-78 ("The third and final
limitation on appellate authority under Rule 52(b) is that the plain error
`affec[t] substantial rights.'" (quoting F.R. Crim. P. 52(b))); Calverley, 37
F.3d at 164 ("Olano counsels that in most cases the affecting of substantial
rights requires that the error be prejudicial; it must affect the outcome of the
proceeding."); Rodriguez, 15 F.3d at 415 (requiring a "specific showing of
prejudice").
4 See Olano, ___ U.S. at ___, 113 S. Ct. at 1778 ("[T]he Court of
Appeals has authority to order correction, but is not required to do so.");
Calverley, 37 F.3d at 164 (noting that an appellate court may decide to correct
the error if "the facts of the particular case warrant remediation").
5 Kheir argues that, "though [its method was] not articulated, the
district court apparently computed [his] criminal history category by adding
three points for the sentence of imprisonment [on the conspiracy and drug
charges] imposed only moments before."
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that error was plain2 and affected substantial rights.3 If a party
can satisfy this first requirement, the appellate court has
discretion to correct the error,4 but "only if the [error]
`seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.'" Calverley, 37 F.3d at 164 (quoting
United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392,
80 L. Ed. 555 (1936)); Rodriguez, 15 F.3d at 416 (same).
Kheir contends first that the district court plainly erred in
finding that his criminal history should be classified as category
II under the Sentencing Guidelines.5 Under § 2J1.6 of the
Sentencing Guidelines:
[T]he defendant may be sentenced on the underlying
offense (the offense in respect to which the defendant
failed to appear) before being sentenced on the failure
to appear offense. In such cases, criminal history
points for the sentenced imposed on the underlying
offense are to be counted in determining the guideline
range on the failure to appear offense only where the

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offense level is determined under subsection (a)(1)
(i.e., where the offense constituted a failure to report
for service of sentence).
United States Sentencing Commission, Guidelines Manual, § 2J1.6,
comment. (n.4) (Nov. 1992). Kheir did not fail to report for
service of his sentence, he failed to appear for sentencing.
Accordingly, the district court erred in assessing a criminal
history of category II, see United States v. Lechuga, 975 F.2d 397,
400 (7th Cir. 1992) (finding error where court increased criminal
history for failure to appear for proceedings other than for
service of sentence), and this error is plain.
However, Kheir must also show that the district court's error
affected his substantial rights. One way a party may show that an
error in sentencing has affected substantial rights is by
demonstrating that the sentence imposed lies outside the correct
guideline range. See United States v. Franks, ___ F.3d ___, 1995
WL 63152, at *23 (5th Cir. Feb. 15, 1995) (finding plain error
because sentence outside correct range and substantially longer
than correct range). Such is not the case here, however. The
district court found the guideline range to be twenty-one to
twenty-seven months. Kheir's range under the correct category,
that is, criminal history category I, would have been eighteen to
twenty-four months. Kheir's sentence of twenty-one months is
therefore within the correct guideline range.
To demonstrate an effect on substantial rights, Kheir must
show that, although the imposed sentence falls within the correct
guideline range, the district court would nonetheless have imposed

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6 United States v. Avalos-Zarate, 986 F.2d 378, 379 (7th Cir. 1993),
which found plain error in an incorrect calculation even though sentence within
correct range and which Kheir cites to support his position, is not the law of
this Circuit.
7 The 96-month total results from the consecutive 75-month sentence for
the underlying offenses followed by the 21-month failure-to-appear sentence.
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a lesser sentence had she known of the error. Kheir points to
nothing in the record indicating that the district court intended
to sentence him to the minimum of the range; therefore, he has
failed to show that the district court's error resulted in a
substantially longer sentence than if the district court had used
the correct range. Consequently, Kheir has not shown that his
substantial rights were affected. United States v. Bullard, 13
F.3d 154, 159 (5th Cir. 1994) (refusing to find plain error when
incorrect sentence nonetheless fell within correctly-calculated
guideline range and "exceeded the minimum of the correct range by
only three months").6
Kheir contends next that the district court should not have
sentenced him separately on the failure-to-appear charge, but
instead should have grouped it with the underlying offenses and
calculated only one guideline range. According to Kheir's
calculation, the proper guideline range would be 87 to 108 months'
imprisonment. The district court actually sentenced him to 96
months.7 Kheir concedes that the sentenced imposed falls within
the guideline range he proposes. As with his earlier contention,
Kheir points to nothing in the record indicating that the district

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8 Indeed, Kheir concedes that he only "assumes" that the district court
intended to impose the minimum sentence.
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court intended a minimum sentence.8 Accordingly, even if the
district court erred in not grouping his offenses, he has failed to
satisfy his burden to show an affect on substantial rights.
Lastly, Kheir argues that the district court impermissibly
sentenced him to consecutive terms of supervised release. See 18
U.S.C. § 3624(e) (1988) (instructing that multiple terms of
supervised release run concurrently). The district court orally
stated that the sentence for the failure-to-appear conviction
should run consecutively to the sentence for the underlying
convictions. Although this may have implied that the terms of
supervised release also ran consecutively, the court's written
judgment clearly ordered that while the terms of imprisonment
should run consecutively, the term of supervised release on the
failure-to-appear conviction should "run concurrently with the term
of supervised release imposed in [the underlying offense case]."
"When the oral pronouncement of sentence does not resolve whether
a sentence runs consecutively or concurrently, the clearly
expressed intent of the sentencing judge discerned from the entire
record controls." United States v. McAfee, 832 F.2d 944, 946 (5th
Cir. 1987); see also United States v. Davidson, 984 F.2d 651, 656
n.9 (5th Cir. 1993) (refusing to apply oral pronouncement over
written statement because oral pronouncement was "cryptic"). The
record as a whole, particularly the written judgment, demonstrates
that the district court imposed concurrent, not consecutive, terms

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of supervised release. We find no error, plain or otherwise, in
the district court's imposition of terms of supervised release.
III
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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