     Case: 16-30803      Document: 00514589088         Page: 1    Date Filed: 08/07/2018




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

                                      No. 16-30803                             FILED
                                                                          August 7, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellee

v.

SIMON CRUZ-PEÑA,

              Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CR-181-1


      ON REMAND FROM THE UNITED STATES SUPREME COURT
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Simon Cruz-Peña pleaded guilty to illegal reentry into the United States
in violation of 8 U.S.C. § 1326(a) and was sentenced to a 48-month term of
imprisonment.       On his initial appeal, Cruz-Peña appealed his sentence,
challenging the calculation of his guidelines range, specifically, an error in his
criminal history score. United States v. Cruz-Peña, 700 F. App’x 338, 339 (5th
Cir. 2017), vacated, 86 U.S.L.W. 3640 (U.S. June 25, 2018) (No. 17-6389). In



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30803

our initial decision, we concluded that plain error review applies. Id. (citing
Puckett v. United States, 556 U.S. 129, 135 (2009)) (describing the four prongs
of plain error review). The parties agreed that the first three prongs of plain
error were met. Id. Cruz-Peña argued that his 2005 Florida conviction for
assault on a law enforcement officer should not have been counted under
United States Sentencing Guideline (“U.S.S.G.”) § 4A1.2(d) because he was a
juvenile at the time of the offense and it occurred more than five years before
the instant illegal reentry offense. Id. at 340. As a result, he contended that
his criminal history category of III should have been II. See id. at 339–40. We
noted that our review suggested that Cruz-Peña was correct in his assertion,
thus meeting the first two prongs of plain error, but we ultimately pretermitted
further consideration of that issue because we concluded that we should not
exercise our discretion to correct the apparent error under the fourth prong of
plain error review. Id. at 340–41. We thus affirmed the sentence. Id. at 341.
      Cruz-Peña sought certiorari from the United States Supreme Court.
Following its decision in Rosales-Mireles v. United States, 138 S. Ct. 1897
(2018), the Court vacated our decision in this case and remanded for further
consideration.   In supplemental briefing, the parties now agree that the
sentence cannot survive plain error review. Of course, we are not required to
accept the Government’s concessions, and we conduct our own independent
review. United States v. Williams, 821 F.3d 656, 658 (5th Cir. 2016).
      We do not repeat the background facts which are described in our prior
opinion. Cruz-Peña, 700 F. App’x at 339. Based upon those facts, we conclude
that the points added for the Florida assault conviction were plain error in
light of U.S.S.G. § 4A1.2(d) because it is undisputed that the offense was
committed when Cruz-Peña was sixteen years old and more than five years
had elapsed from the date of his conviction and the date of the current offense


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                                 No. 16-30803

(which had to have occurred after his deportation, some seven years after the
Florida assault offense).
      As explained in our prior opinion, we have to conclude that the third
prong is met because “the record is silent as to what the district court might
have done had it considered the correct Guidelines range.”           See Molina-
Martinez v. United States, 136 S. Ct. 1338, 1348 (2016). Although the district
court considered and rejected a request for a downward variance, it did so
without reference to the correct guidelines range. As the Supreme Court
observed, “[t]he Guidelines inform and instruct the district court’s
determination of an appropriate sentence.” Id. at 1346.
      We now turn to the remaining question: whether we should exercise our
discretion to correct the error. Rosales-Mireles answers the question: we
should exercise our discretion in this case to remand for resentencing. See 138
S. Ct. at 1908–11.
      Accordingly, we VACATE Cruz-Peña’s sentence and REMAND for
reconsideration in light of the correct guidelines range.
      VACATED and REMANDED.




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