     Case: 16-11743      Document: 00514493172         Page: 1    Date Filed: 05/30/2018




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

                                                                                FILED
                                      No. 16-11743                          May 30, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

ERICK ROLANDO GARZA-CASTANEDA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-137-1


Before REAVLEY, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Erick Rolando Garza-Castaneda appeals the district court’s application
of a ten-level enhancement under U.S.S.G. §2 L1.2 to his sentence for illegal
reentry into the United States after prior removal. We conclude that the
district court committed plain error in applying the enhancement.
Accordingly, we VACATE the erroneous sentence and we REMAND for
resentencing.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11743
                      FACTS AND PROCEDURAL HISTORY
      In 2016, Erick Rolando Garza-Castaneda (Garza) pleaded guilty to
illegal reentry into the United States after a prior removal in violation of 8
U.S.C. § 1326(a) and (b)(2). The probation officer prepared a presentence
report (PSR) using the 2015 Sentencing Guidelines manual, but later amended
the PSR to reflect the November 1, 2016, version of U.S.S.G. § 2L1.2. The 2016
amended text of the applicable subsection of § 2L1.2 directed courts to apply
graduated enhancements of two to ten offense levels based on the sentence
imposed for convictions sustained “before the defendant was ordered deported
or ordered removed from the United States for the first time.” U.S.S.G. §
2L1.2(b)(2)(A)-(E). 1 The amended guideline also directed courts to impose
graduated enhancements of two to ten offense levels for criminal conduct
engaged in after the defendant was removed. U.S.S.G. § 2L1.2(b)(3).




      1   Section 2L1.2 states in relevant part:

               If, before the defendant was ordered de-ported or ordered removed from
               the United States for the first time, the defendant sustained—

               (A) a conviction for a felony offense (other than an illegal reentry
               offense) for which the sentence imposed was five years or more, increase
               by 10 levels;
               (B) a conviction for a felony offense (other than an illegal reentry
               offense) for which the sentence imposed was two years or more, increase
               by 8 levels;
               (C) a conviction for a felony offense (other than an illegal reentry
               offense) for which the sentence imposed exceeded one year and one
               month, increase by 6 levels;
               (D) a conviction for any other felony offense (other than an illegal
               reentry offense), increase by 4 levels; or
               (E) three or more convictions for misdemeanors that are crimes of
               violence or drug trafficking offenses, increase by 2 levels.

      U.S.S.G. § 2L1.2(b)(2).
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                                 No. 16-11743
      The PSR assigned Garza a base offense level of eight and increased his
offense by ten levels under U.S.S.G. § 2L1.2(b)(2)(A).            The ten-level
enhancement was based on Garza’s March 19, 2007, guilty plea to aggravated
robbery with a deadly weapon for which he received a sentence of ten years
deferred adjudication probation. Garza was removed to Mexico on November
15, 2007. Garza was arrested on January 13, 2008, for unlawful possession of
a controlled substance and evading arrest. He pleaded guilty on April 4, 2008.
On that same date, Garza’s deferred adjudication probation for the robbery
conviction was revoked and he was sentenced to five years of imprisonment.
      The PSR also increased Garza’s offense level by four levels under §
2L1.2(b)(3)(D) based on his 2008 conviction for unlawful possession of a
controlled substance. The PSR reduced Garza’s offense level by three levels
for acceptance of responsibility. Garza’s total offense level of 19 combined with
his criminal history category of II resulted in an advisory guidelines range of
37 to 46 months of imprisonment. Garza did not object to the total offense level
calculation.
      The district court adopted the PSR, but sentenced Garza below the
guidelines range to 36 months of imprisonment. Garza did not object to the
sentence, but timely filed a notice of appeal.
                                DISCUSSION
      On appeal, Garza asserts that the district court erred in applying the
ten-level enhancement under U.S.S.G. § 2L1.2(b)(2)(A). Because Garza did not
object, we review for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009). To establish plain error, Garza must show
an error that is clear and obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009).          “Once these three
conditions have been met, the court of appeals should exercise its discretion to
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                                   No. 16-11743
correct the forfeited error if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Molina-Martinez v. United States, –
–– U.S. ––––, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (internal marks
and citations omitted).
      With regard to the fourth prong, “whether a sentencing error seriously
affects the fairness, integrity, or public reputation of judicial proceedings is
dependent upon the degree of the error and the particular facts of the case.”
United States v. Hernandez, 690 F.3d 613, 622 (2012); see also United States v.
Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012). While application of the
fourth prong is not automatic when the other three prongs are met, we have
exercised our discretion to correct the error in the event of a substantial
disparity between the imposed sentence and the applicable guidelines range.
United States v. Zuniga, 860 F.3d 276, 277 (5th Cir. 2017).
      Garza asserts that the term “sentence imposed” in the new version of §
2L1.2(b)(2) does not include prison time imposed upon revocation after a prior
removal and that his post-removal revocation prison time should have been
disregarded. Garza argues that, as a result, he should have been subject only
to the four-level enhancement in § 2L1.2(b)(2)(D). Garza cites United States v.
Bustillos-Pena, 612 F.3d 863, 865-69 (5th Cir. 2010) as further support.
      During the pendency of this appeal, this court issued a decision in the
factually similar case of United States v. Franco-Galvan, 864 F.3d 338 (5th Cir.
2017), which interpreted the new § 2L1.2 text and commentary. In Franco-
Galvan, this court concluded that the 2016 revisions to § 2L1.2 did not affect
the reasoning of Bustillos-Pena, saying: “it remains the case that the
contribution of a conviction sustained prior to the deportation order to the
seriousness of the illegal reentry offense is to be assessed based on the original,


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                                  No. 16-11743
pre-deportation sentence, not a sentence issued upon revocation post-
deportation.” Id. at 343.
      The government concedes plain error under Franco-Galvan, but argues
that this court should not exercise its discretion under prong four to correct the
error because of Garza’s criminal history. However, Garza asserts that the
interest of justice merits correction of the error.
      We agree that Garza has established plain error. Absent the plain error,
Garza would have been subject to a correct guidelines range of 18 to 24 months
which does not overlap with the incorrect range of 37 to 46 months. The top of
the correct range is twelve months less than the 36-month sentence imposed.
This court has exercised its discretion to correct errors in cases involving much
shorter disparities. See United States v. Guillen-Cruz, 853 F.3d 768, 775-77
(5th Cir. 2017); see also United States v. John, 597 F.3d 263, 285, 289 (5th Cir.
2010); and United States v. Santacruz-Hernandez, 648 F. App’x 456, 458 (5th
Cir. 2016) (unpublished). Further, the district court did not state that it would
impose a 36-month sentence regardless of the correct guidelines range.
      After considering the applicable law and the facts involving Garza’s
criminal history, we conclude that there is no basis for affirming the erroneous
sentence. Garza’s criminal history is properly accounted for in his criminal
history points, as opposed to somehow being used to increase the seriousness
of his offense of reentry.
      For these reasons, we VACATE Garza’s sentence and REMAND for
resentencing.




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                                  No. 16-11743
EDITH H. JONES, Circuit Judge, dissenting:
      With due respect to my colleagues, I dissent from awarding relief on
plain error in this case.    The panel continues down our court’s path of
collapsing plain error, i.e., error that was never argued to the district court,
with preserved error that it is our duty to correct. The Federal Public Defender
office continues on its path of crafting after-the-fact arguments for the first
time on appeal. On the one hand, the FPD benefitted from delay on appeal,
because a panel of our court decided the case in 2017 that created the “plain”
legal error from which their defendant benefits. On the other hand, had the
FPD presented this argument to the district court in the first instance, and
succeeded, Garza might have already been out of prison; the US Attorney
rarely appeals sentencing decisions.
      As it stands, Garza is due to be released from his 36-month sentence in
November 2018. The panel’s grant of relief on plain error does not mean that
he will be immediately released (because he has already served longer than
the revised within-guidelines calculation would have provided), but only that
he must appear in the district court for resentencing in light of the new found
error. Arranging and scheduling the new hearing and his transportation to
court will necessarily consume at least a month, together with the possibility
of further delay from a revised PSR. In sum, Garza may get a couple months
fewer in prison while the courts, FPD, and the United States spend days and
weeks in the quixotic quest for the “perfect” guidelines sentence.
      Cui bono? The fourth prong of plain error review asks whether failure
to correct an “erroneous” sentence would seriously affect the fairness, integrity,
or public reputation of judicial proceedings. See Puckett v. United States,
556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009). Some clearly believe that a
single extra day spent “erroneously” in federal prison is enough to satisfy this
standard. My panel colleagues, not going so far, say only that a one year
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                                 No. 16-11743
disparity between the two guidelines ranges is sufficient to invoke this prong.
Maybe in a few isolated cases this would be accurate, but simply citing prior
Fifth Circuit cases does not, in my view, satisfy the fact-specific nature of the
inquiry we ought to be making in these cases.
      The balance in this case should have been struck against granting relief.
To begin, it isn’t damaging to the courts’ reputation that the FPD utterly failed
to raise the now-decisive issues in the district court. See United States v.
Chavez-Hernandez, 671 F.3d 494,497 (5th Cir. 2012) (“The purpose of plain
error review is to instill in litigators the importance of preparing adequately
before appearing in the trial court and, as necessary, clarifying issues to that
court.”). That court was sandbagged procedurally and will be imposed on by a
new sentencing hearing. It isn’t the courts’ reputation that should suffer when
a defense counsel undermines orderly procedures concerning preserved error
and the give and take among the Probation Office, which prepares the PSR,
the US Attorney’s office, and the defense counsel. In a very busy federal
criminal justice system, these procedures are essential to efficiency and justice
and should only be overcome for the very best of reasons.
      On the other side of the ledger here stands the couple of months’ practical
benefit to this defendant from potential shorter imprisonment not far from
Dallas where his family resides. He should be shortly thereafter deported to
Mexico, of course, much farther from immediate family. His criminal record,
moreover, began at age 15 and includes drug offenses, aggravated robbery with
a deadly weapon while on probation, and five years already spent in the TDCJ
(although he is now only 31 years old), and does not generate sympathy or a
feeling of general injustice. He was arrested in this case for illegal reentry
while in possession of a taser and alias identification. Yet the actual sentence
rendered here was 36 months, one month less than what the district court and
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                                No. 16-11743
parties agreed was the correct guidelines range, and thus already embodied
the trial court’s ameliorative discretion. Garza additionally has no verified
employment record, lived at home with his parents, and refused to discuss with
the Probation Office any history of drug abuse.
      Looking at this case and this defendant, in sum, I do not believe the
courts’ reputation would have been adversely affected by our refusing to grant
relief on the fourth prong of plain error review. To the contrary, a denial of
relief would effectuate the policy underlying this court’s plain error
jurisprudence.




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