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

                                                                  FILED
                                                                February 22, 2008
                               No. 07-50683
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

FELIPE CARDENAS-LANDIN

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:06-CR-2176-ALL


Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
      Felipe Cardenas-Landin pleaded guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326 and was sentenced to 30 months of imprisonment
and three years of supervised release. The district court applied a four-point
enhancement to his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(E) based on
three convictions for misdemeanor crimes of violence. Cardenas-Landin did not
object to the enhancement.



      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-50683

      Cardenas-Landin argues for the first time on appeal that the district court
plainly erred in determining that his convictions for making a terroristic threat
and for assault were misdemeanor crimes of violence under § 2L1.2(b)(1)(E). He
argues that the district court’s error requires reversal as plain error.
      The Government concedes that none of Cardenas-Landin’s prior
misdemeanor convictions are crimes of violence within the meaning of
§ 2L.12(a)(1)(E).    However, the Government argues that Cardenas-Landin
cannot demonstrate that his substantial rights have been affected by the district
court’s error. The Government contends that based on Cardenas-Landin’s
extensive history of violence, the district court expressed a desire to incarcerate
him for a long time. The Government argues that the record reflects that the
district court would impose the same sentence on remand.
      Cardenas-Landin argues in reply that the Government’s argument ignores
this court’s precedent. He contends that this court rejected the same argument
in United States v. Dentler, 492 F.3d 306 (5th Cir. 2007).
      In United States v. Villegas, 404 F.3d 355, 362 (5th Cir. 2005), we
addressed review of a district court’s application of the Sentencing Guidelines
under a post-Booker1 sentencing regime. We determined that Booker did not
excise 18 U.S.C. § 3742(f), which requires that a sentence imposed “as a result
of an incorrect application of the sentencing guidelines” be vacated and the case
remanded for further sentencing proceedings. Id. Concluding that the district
court plainly erred in calculating the guideline range, we vacated the defendant’s
sentence without considering the sentence’s ultimate reasonableness. Id. at
364-65.
      In Dentler, the Government also conceded that the district court had
misapplied the Guidelines, resulting in an increase in the advisory guideline
range from 140-175 months to 210-262 months. The district court sentenced the


      1
          United States v. Booker, 543 U.S. 220 (2005).

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defendant to 240 months, the statutory maximum for the offense. 492 F.3d at
308-09. The Government argued that, based on comments made by the district
court at the sentencing hearing that it sought to impose the highest sentence
possible, the defendant could not show plain error. Id. at 313.
      We rejected the Government’s argument, noting that the district court’s
error resulted in a sentencing range in which the lowest possible sentence was
65 months higher than the top of the correct range. We stated that “such a gap
affects his substantial rights,” citing Villegas. In Villegas, we held that because
the two sentencing ranges did not overlap, “the district court’s error necessarily
increased Villegas’s sentence and thus affected his substantial rights.” 404 F.3d
at 364. Villegas involved a misapplication of the Guidelines and a sentence
imposed within the incorrectly calculated guideline range under the then
mandatory scheme. Id. at 364-65. In Dentler, we applied Villegas to a sentence
imposed within the incorrectly calculated guideline range under the advisory
system, vacated the sentence, and remanded for resentencing. 492 F.3d at 313-
14.
      In this case, the district court imposed a sentence at the top of the
incorrectly calculated advisory guideline range of 24 to 30 months. Without the
erroneous four-point enhancement, Cardenas-Landin’s offense level would have
been reduced from 10 to 6, and with a criminal history category of VI, his correct
guideline range would have been 12 to 18 months. U.S.S.G. Sentencing Table,
Ch. 5, Pt. A. The two ranges do not overlap. The district court did not depart
pursuant to the Guidelines, and it did not impose a non-guideline sentence.
Thus, there is no basis to conclude that the sentence did not “result” from the
misapplication of the Guidelines. See United States v. Duhon, 440 F.3d 711, 716
(5th Cir. 2006) (holding that non-guideline sentence did not result from the
Guidelines error), petition for cert. filed, (May 18, 2006) (No. 05-11144); United
States v. Tzep-Mejia, 461 F.3d 522, 526-27 (5th Cir. 2006) (distinguishing



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between sentences imposed within the guideline range and non-guideline
sentences).
     We hold that Cardenas-Landin has demonstrated plain error, and we
vacate his sentence and remand the case for resentencing.
     SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




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