     Case: 15-51221      Document: 00514293090         Page: 1    Date Filed: 01/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-51221                              FILED
                                                                          January 3, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                Clerk

              Plaintiff - Appellee

v.

MIGUEL ANGEL SEGOVIA-RIVAS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:15-CR-259-1


Before REAVLEY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       After Miguel Angel Segovia-Rivas pleaded guilty to illegal reentry into
the United States, the district court sentenced him to 41 months’ imprisonment
and three years of supervised release, premised in large part on a 16-level
enhancement for a prior conviction of a crime of violence. Because we find the
enhancement to be plain error, and because we find the remaining plain-error




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51221
prongs satisfied, we vacate Segovia-Rivas’s sentence and remand for
resentencing.
                               I. BACKGROUND
      Miguel Angel Segovia-Rivas was deported in January 2015. The
following   month,    United    States   Border    Patrol    agents   apprehended
Segovia-Rivas near Comstock, Texas. Segovia-Rivas subsequently pleaded
guilty to illegal reentry, a violation of 8 U.S.C. § 1326.
      The presentence investigation report (PSR) identified a base offense level
of eight and recommended a 16-level enhancement for a prior Texas conviction
of a “crime of violence,” as defined by the (then-applicable) 2015 version of the
United States Sentencing Guidelines. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
prior crime was Segovia-Rivas’s 2005 conviction for attempted deadly conduct,
a lesser-included state-jail felony of the deadly-conduct offense contained in
TEX. PENAL CODE § 22.05(b). Based upon the 16-level enhancement and a
three-level reduction for acceptance of responsibility, the PSR arrived at a total
offense level of 21. Coupling that total offense level with a criminal history
category of II, the PSR recommended a Guidelines range of 41 to 51 months’
imprisonment. Segovia-Rivas did not object to the PSR’s recommendations.
      At sentencing, the Government requested a sentence at the high end of
the Guidelines, and Segovia-Rivas requested a below-Guidelines sentence. The
district court then imposed a sentence at the bottom of the recommended
range: 41 months’ imprisonment with three years of supervised release.
Segovia-Rivas objected only that the sentence was greater than necessary to
comply with the sentencing goals contained in 18 U.S.C. § 3553(a), but he did
not object to the 16-level enhancement. Segovia-Rivas timely appealed.
                                 II. ANALYSIS
      On appeal, Segovia-Rivas challenges his sentence on one ground: the
16-level enhancement was erroneous because his 2005 conviction for
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                                 No. 15-51221
attempted deadly conduct was not a predicate crime of violence. Because
Segovia-Rivas did not raise this objection before the district court, he concedes
that our review is for plain error. See United States v. Renteria-Martinez, 847
F.3d 297, 299 (5th Cir. 2017).
A.    The Plain-Error Standard
      Plain-error review involves four prongs, each of which must be satisfied
before we may intervene: (1) “there must be an error or defect . . . that has not
been intentionally relinquished or abandoned”; (2) “the legal error must be
clear or obvious, rather than subject to reasonable dispute”; (3) “the error must
have affected the appellant’s substantial rights”; and (4) “if the above three
prongs are satisfied, the court of appeals has the discretion to remedy the
error—discretion which ought to be exercised only if the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citations and internal
quotations omitted and alterations in original).”
B. The Error
      To qualify as a crime of violence under the relevant 2015 Guidelines
provision, a prior conviction must either fit into an enumerated list (murder,
manslaughter, etc.) or constitute an “offense under federal, state, or local law
that has as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Deadly
conduct is not among the enumerated offenses, so we ask whether it qualifies
as a crime of violence under the latter use-of-force category.
      In reaching an answer, our analytical approach depends on whether the
statute is “divisible or indivisible.” United States v. Mendez-Henriquez, 847
F.3d 214, 218 (5th Cir. 2017). If the statute contains “‘a single . . . set of
elements to define a single crime,’” the “statute is indivisible [and] the
sentencing court utilizes a categorical analysis.” Id. (quoting Mathis v. United
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States, 136 S. Ct. 2243, 2248 (2016)). The categorical approach then asks the
court to line up the offense’s elements “alongside those of the generic offense”
and see if they match. Id. (internal quotations omitted). “If they match, or if
the generic offense is broader, the enhancement is applicable.” Id. Conversely,
if the statute “list[s] elements in the alternative, and thereby define[s] multiple
crimes,” it is divisible, and the sentencing court will instead utilize a “modified
categorical approach.” Mathis, 136 S. Ct. at 2249. That modified categorical
approach permits the court to go beyond the statutory language and examine
“a limited class of documents (for example, the indictment, jury instructions,
or plea agreement and colloquy) to determine what crime, with what elements
a defendant was convicted of. The court can then compare that crime, as the
categorical approach commands, with the relevant generic offense.” Id.
(citations omitted). However—and this is often the case-determinative
distinction—a statute is not divisible if it contains merely alternative “means”
for committing a single crime. Id. at 2251.
      The deadly-conduct statute reads in pertinent part as follows:
      (a) A person commits an offense if he recklessly engages in conduct
          that places another in imminent danger of serious bodily
          injury.
      (b) A person commits an offense if he knowingly discharges a
          firearm at or in the direction of:
            (1) one or more individuals; or
            (2) a habitation, building, or vehicle and is reckless as to
            whether the habitation, building, or vehicle is occupied.
TEX. PENAL CODE §§ 22.05(a)–(b). Both sides agree that Segovia-Rivas’s
conviction fell within TEX. PENAL CODE § 22.05(b): the discharge of a firearm
at some qualifying target. And Segovia-Rivas does not contest that, if we were
to utilize a modified categorical approach, we would classify his conviction
under subsection (b)(1): the discharge of a firearm at an individual. He argues


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                                   No. 15-51221
only that the modified categorical approach is inapplicable here because the
statute is indivisible.
      When Segovia-Rivas was sentenced, the 16-level enhancement seemed
proper. Our caselaw then treated subsections (b)(1) and (b)(2) as separate
offenses (i.e., a divisible statute) and subjected the statute to the modified
categorical approach. See United States v. Hernandez-Rodriguez, 467 F.3d 492,
494 (5th Cir. 2006). In that vein, we had established that subsection (b)(1)
constituted a crime of violence, id. at 495, but that subsection (b)(2)—without
the requisite use-of-force component—did not, United States v. Dixon, 265 F.
App’x 383, 385–86 (5th Cir. 2008) (per curiam).
      Yet, something happened in the interim that caused us to change course:
Mathis provided a much-needed clarification of the difference between
“elements” and “means.” 136 S. Ct. at 2253–54. Mathis in hand, we revisited
the divisibility of TEX. PENAL CODE § 22.05(b) and held recently that
subsections (b)(1) and (b)(2) constitute alternative means of committing a
single offense, meaning the statute is indivisible and subject only to the
categorical approach. United States v. Perlaza-Ortiz, 869 F.3d 375, 379 (5th
Cir. 2017). In turn, we now treat a conviction under TEX. PENAL CODE
§ 22.05(b)—whatever the indictment may have charged—as outside the
Guidelines definition of qualifying crimes of violence. Id. at 377, 380.
      In     light    of     Mathis     and       Perlaza-Ortiz,    Segovia-Rivas’s
attempted-deadly-conduct conviction was not a crime of violence, and his
corresponding 16-level enhancement was erroneous. Id. In evaluating the
plainness of that error, we look not to then-existing law, but to the state of law
at the “time of appellate consideration.” Henderson v. United States, 568 U.S.
266, 279 (2013). We find the error clear, and as a result, the first two prongs of
our plain-error review are satisfied. Puckett, 556 U.S. at 135.


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                                       No. 15-51221
C. Segovia-Rivas’s Substantial Rights
      We turn now to the third prong of our plain-error standard: whether the
erroneous enhancement affected Segovia-Rivas’s substantial rights. “In the
sentencing context, the third prong requires that the defendant demonstrate a
‘reasonable probability’ that, but for the district court’s error, he would have
received a lesser sentence.” United States v. Culbertson, 712 F.3d 235, 243 (5th
Cir. 2013) (quoting United States v. Dickson, 632 F.3d 186, 191 (5th Cir. 2011)).
When “the record is silent as to what the district court might have done had it
considered the correct Guidelines range, the court’s reliance on an incorrect
range in most instances will suffice to show an effect on the defendant’s
substantial rights.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1347
(2016) (describing the so-called “ordinary case”). However, in some instances,
a judge’s “explanation could make it clear that the judge based the sentence he
or she selected on factors independent of the Guidelines.” Id.
      Segovia-Rivas has met his burden here. The improperly-calculated
Guidelines range provided for a sentence between 41 and 50 months, and
Segovia-Rivas received a sentence of 41 months. Without the 16-level
enhancement, the district court would have been left to apply either a
four-level felony enhancement (as Segovia-Rivas suggests) or an eight-level
aggravated-felony enhancement (as the Government suggests). 1 The correct
Guidelines range would thus have been either eight to 14 months or 15 to 21
months. Whichever way you slice it, the correct Guidelines range would have
been lower than the erroneous range employed by the district court—the
ranges are far from overlapping. Were this an “ordinary case,” the significant
difference between Segovia-Rivas’s sentence and a correct Guidelines range




      1   We, of course, express no view on which of these enhancements is proper.
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                                  No. 15-51221
would be more than sufficient to show prejudice under the Molina-Martinez
rubric. See 136 S. Ct. at 1347.
      But the Government says this is not an ordinary case, placing significant
reliance on the following statement by the district court: “Sentence I impose
would be the same sentence I’d impose either with or without an advisory
guideline sentence—system.” We are unsure what to make of this statement.
Did the court mean that it would have imposed the same sentence whether the
Guidelines were advisory or mandatory? Or, did the court mean that it would
have imposed the same sentence whether or not there were Guidelines at all?
The former inferred meaning would do little to “counter any ostensible showing
of prejudice” Segovia-Rivas made. United States v. Vonn, 535 U.S. 55, 68
(2002). And the latter strikes us as entirely implausible in light of the
sentencing record as a whole.
      Indeed, the record reflects what the district court did not mean. The court
did not demonstrate that Segovia-Rivas’s 41-month sentence was untethered
from the erroneous 16-level enhancement and the correspondingly higher
Guidelines range—it did precisely the opposite. First, not only did the court
impose a within-guidelines sentence, the following statement seems to suggest
(contrary to the isolated statement above) that it felt compelled to do so:
“Within an advisory guideline system, I have to pronounce a guideline
sentence.” Second, the court never explained what it would have done had it
applied the correct range. Nor did the court have any reason to explain; it
confronted only the erroneously higher range. Cf. United States v. Rico-Mejia,
859 F.3d 318, 323 (5th Cir. 2017) (“One way to demonstrate that the sentence
was not imposed as a result of the Guidelines error is to show that the district
court considered the correct Guidelines range and subsequently indicated that
it would impose the same sentence even if that range applied.”). Finally, and
perhaps most importantly, the court emphasized again and again the role of
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                                  No. 15-51221
Segovia-Rivas’s crime-of-violence conviction in the sentencing decision. For
instance, the court told Segovia-Rivas that the conviction will “stay with [him]
until [he] die[s],” that the conviction would “lead to increased punishment for
future violation of our laws,” and, most tellingly, that the conviction was
“considered.”
      When an erroneous sentencing factor produces a higher guidelines range
and is “such a central part of the district court’s explanation of [the
defendant’s] sentence that ‘we cannot confidently say that the district court
would have imposed the same sentence’ without it,” we find prejudice. United
States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir. 2012) (quoting United
States v. Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009)). Such is the
case here. And because the Government has made no persuasive showing to
the contrary, the third prong is satisfied.
D. Our Discretion
      Finally, we reach the fourth prong of our plain-error review: whether
“the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Puckett, 556 U.S. at 135. We remain ever-mindful that
we should not exercise our discretion lightly; the fourth prong is satisfied only
“in those circumstances in which a miscarriage of justice would otherwise
result.” United States v. Olano, 507 U.S. 725, 735–36 (2011) (citation and
internal quotations omitted). In conducting the inquiry, “we consider the
particular facts and degree of error in this case.” United States v. Martinez-
Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016).
      With the sentencing error known only upon appeal, as it was here, it may
be objectionable to withhold error correction due to a standard the defendant
was destined to face. But, assuming we must nevertheless examine
Segovia-Rivas’s case in particular, we would reach the same result.


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                                  No. 15-51221
      On first glance, the “facts” of this case appear as somewhat of a mixed
bag. As most criminal appeals do, Segovia-Rivas’s case has some aggravating
factors, most notably his past conviction for attempted deadly conduct. Though
the guidance of Mathis indicates the conviction is not a technical “crime of
violence,” it by no means strikes us as a petty one either. That said, both the
Texas court that originally sentenced Segovia-Rivas for that crime and the
district court that sentenced him on the present offense saw fit to render
proportionately lenient sentences. The Texas court sentenced Segovia-Rivas
under a state-specific procedural quirk that permits a judge to punish a state-
jail felony conviction with a Class A misdemeanor sentence “after considering
the gravity and circumstances of the felony committed and the history,
character, and rehabilitative needs of the defendant [and finding] that such
punishment would best serve the ends of justice.” TEX. PENAL CODE § 12.44(a)
(emphasis added). And the district court below sentenced Segovia-Rivas at the
very bottom of the (ultimately incorrect) Guidelines range. Whether the court
did so because one decade had elapsed since Segovia-Rivas’s last conviction
and two decades had elapsed since his only other conviction, or because of some
other mitigating factor, we do not know. But, given the lenient treatment by
the two courts to take full account of Segovia-Rivas’s record and circumstances,
we cannot say that the facts of his case foreclose our intervention.
      This is particularly true in light of the “degree” of the error before us. We
have held on several occasions that the “substantial disparity between the
imposed sentence and the applicable Guidelines range warrants the exercise
of our discretion to correct the error.” United States v. Mudekunye, 646 F.3d
281, 291 (5th Cir. 2011); see also United States v. Hernandez, 690 F.3d 613, 622
(5th Cir. 2012). So too here. The minimum distance between the high end of
the Government’s fallback range (15 to 21 months) and the low end of the
incorrect higher range (41 to 51 months) is a full 20 months. What is more,
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                                  No. 15-51221
were the district judge to have sentenced Segovia-Rivas to the bottom end of
the Government’s lower range, just as it did with respect to the incorrect range,
the disparity would be as great as 26 months. Put more succinctly, the
improper range may have resulted in a more-than-doubled sentence. These
figures approximate or exceed past disparities held sufficient to warrant error
correction. See, e.g., United States v. John, 597 F.3d 263, 285 (5th Cir. 2010)
(exercising discretion under the fourth prong when the sentence was 21
months above the correct range); Mudekunye, 646 F.3d at 290–91 (doing the
same for a sentence that was 19 months above the correct range); but see
United States v. Wikkerink, 841 F.3d 327, 337–39 (5th Cir. 2016) (declining to
exercise fourth-prong discretion despite 180-month sentencing disparity
because of the defendant’s particularly troubling background and the district
court’s belief that the Guidelines range did not provide adequate deterrence).
We therefore find it prudent to exercise our plain-error correction in
Segovia-Rivas’s case.
                              III. CONCLUSION
    For the foregoing reasons, we vacate Segovia-Rivas’s sentence and remand
to the district court for resentencing. The mandate shall issue immediately.
See FED. R. APP. P. 41(b), (c).




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