     Case: 16-41027      Document: 00514752069         Page: 1    Date Filed: 12/07/2018




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

                                                                                FILED
                                    No. 16-41027                        December 7, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

EDUARDO DAVILA-MEDINA, also known as Jose Alberto Diaz-Flores, also
known as Jose Luis Torres-Medina,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:15-CR-1599-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Eduardo Davila-Medina was convicted of illegal reentry into the United
States after removal on a plea of guilty.            He was sentenced to a term of
imprisonment of 77 months to run concurrently with his state conviction. He
was ultimately sentenced to four years in Texas state prison, where he is




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-41027     Document: 00514752069      Page: 2   Date Filed: 12/07/2018



                                   No. 16-41027
currently housed, based upon a conviction for failing to register as a sex
offender.
      Davila-Medina appeals his sentence, calculated under the 2015
Sentencing Guidelines, challenging three aspects of his sentencing guidelines
calculation: (1) the conclusion that his prior Texas conviction of burglary of a
habitation qualified as a crime of violence for purposes of the U.S.S.G. §
2L1.2(b)(1)(A)(ii); (2) the conclusion that his prior convictions of sexual assault
qualified as crimes of violence for purposes of § 2L1.2(b)(1)(A)(ii); and (3)
assessment of one point in his criminal history score under § 4A1.1(e), based
upon his second sexual assault conviction.         The first alleged error was
preserved; the other two are subject to plain error review. Puckett v. United
States, 556 U.S. 129, 135 (2009)
      The Government concedes, and we agree, that under our precedent in
United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), petition for
cert. filed (Apr. 18, 2018) (No. 17-1445), his burglary conviction (under Texas
Penal Code § 30.02) is not a crime of violence. The Government concedes, and
we also agree, that under our precedent in United States v. Hernandez-Avila,
892 F.3d 771 (5th Cir. 2018), his sexual assault of a child convictions (under
Texas Penal Code §22.011(a)(2)(A)) are not crimes of violence.
      Thus, the district court committed clear error as to the burglary
conviction enhancement and error that was plain under the alternative ground
of sexual assault of a child. Because the latter error was not preserved, we
must analyze the two other prongs of plain error: whether it affected his
substantial rights and whether we should exercise our discretion to correct the
error. Puckett, 556 U.S. at 135.
      In Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016)), the
Supreme Court explained that “most often” an error in calculating the
sentencing guidelines range will be sufficient to meet the third prong of the
                                        2
     Case: 16-41027       Document: 00514752069         Page: 3    Date Filed: 12/07/2018



                                      No. 16-41027
plain error analysis. Here, the guidelines range would have been lower (33-41
months v. 77-96 months) absent the enhancement.                     Davila-Medina was
sentenced at the bottom of the guidelines range the district court concluded
was applicable, and the judge gave no indication that the range did not affect
his analysis. We conclude, therefore, that the third prong is met.
       Turning to the fourth prong, the Supreme Court recently clarified that,
in the area of sentencing guidelines calculation errors, an error that resulted
in a higher guidelines range generally establishes a reasonable probability that
the defendant will serve a sentence greater than needed to fulfill the objectives
of incarceration, reasoning that “[t]he risk of unnecessary deprivation of liberty
particularly undermines the fairness, integrity, or public reputation of judicial
proceedings” because mistakes under the Guidelines are the result of judicial
error and can easily be addressed through resentencing. Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1907-08 (2018). The Government offers no
arguments 1 to support a conclusion that this case presents a situation “where
countervailing factors [should] satisfy the court of appeals that the fairness,
integrity, and public reputation of the proceedings will be preserved absent
correction.” Id. at 1908. Indeed, its original brief relied upon the now-reversed
decision of our court in Rosales-Mireles, and its supplemental briefing does not
address the fourth prong at all.        Of course, on remand, the district court can
consider the nature of Davila-Medina’s previous offenses and determine that
an upward variance or departure is appropriate. We offer no opinion in that
regard, instead entrusting that consideration to the discretion of the district



       1   The Government instead argues that we should await the results of the pending
certiorari petition in Herrold. Even where the Supreme Court has granted certiorari, this
court is bound by its own precedent, unless and until that precedent is altered by a decision
of the Supreme Court. See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986). This
appeal has already been pending for two years. We thus deny the Government’s motion to
hold this appeal in abeyance pending the final results in Herrold.
                                             3
    Case: 16-41027     Document: 00514752069     Page: 4   Date Filed: 12/07/2018



                                  No. 16-41027
court. Similarly, because the enhancement errors are sufficient to require
reversal and remand of the sentence, we need not address the criminal history
point issue as the district court can consider that issue in the first instance on
remand.
      Accordingly, we AFFIRM Davila-Medina’s conviction and VACATE his
sentence. We REMAND for resentencing in light of this opinion.




                                        4
