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

                                                                    FILED
                                                                 December 17, 2008
                                No. 08-40546
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MANUEL CARRIZALES-JARAMILLO

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 1:08-CR-14-1


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Manuel Carrizales-Jaramillo (“Carrizales”) pleaded guilty to unlawfully
attempting to enter the United States after deportation, having previously been
convicted of a felony, in violation of 8 U.S.C. § 1326(a), (b). The district court
adopted the presentence report’s guidelines calculations, which indicated that
Carrizales’ offense level of 13, coupled with his criminal history category of V,
resulted in an advisory guidelines range of 30 to 37 months of imprisonment.



      *
      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should not be published and is not precedent except under the limited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. 08-40546

The district court sentenced Carrizales to 31 months of imprisonment, near the
low end of the advisory guidelines range of 30 to 37 months of imprisonment.
      Carrizales argues that the district court plainly erred in its calculation of
his criminal history points, because the district court improperly assigned two
points to a term of imprisonment of 180 days that was imposed in December
1996 in connection with a Texas conviction of cocaine possession. He argues that
under U.S.S.G. § 4A1.2(e)(1)-(3) (2007), because the December 1996 term of
imprisonment was imposed more than 10 years prior to the instant offense, no
criminal history points should have been assigned for this offense.            The
Government agrees with Carrizales’ argument that the district court committed
plain error and that resentencing is required.
      This court reviews a sentencing decision for “reasonableness,” applying the
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). This review includes an assessment of whether the district
court improperly calculated the guidelines range. Id. As Carrizales did not raise
this argument in the district court, review is for plain error. See United States
v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008). To show plain error, Carrizales
must show an error that is clear or obvious and that affects his substantial
rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). If the
appellant makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      Carrizales correctly asserts that the district court’s assessment of his
criminal history points included two points for his December 1996 Texas
conviction of possession of cocaine. As Carrizales committed the instant offense
approximately 11 years after the 180-day sentence was imposed in December
1996, the district court committed clear or obvious error by including two
criminal history points for this conviction. See § 4A.1.1(a), (b) and comment.
(n.2); § 4A1.2(e)(2). Subtraction of two of Carrizales’ criminal history points from

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his score of 11 points results in a total of nine criminal history points, which
establishes a criminal history category of IV, rather than category V, which the
district court used. See U.S.S.G., Ch. 5, Sentencing Table. The combination of
criminal history category IV and Carrizales’ offense level of 13 results in a
guidelines imprisonment range of 24 to 30 months, less than the 30 to 37 month
range adopted by the district court.
      While there is a one month overlap in the two sentencing ranges,
Carrizales’ sentence of 31 months exceeds the top of the properly calculated
guidelines range of 24 to 30 months of imprisonment. Unlike in United States
v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008), petition for cert. filed (Oct. 3, 2008)
(No. 08-6668), the district court in Carrizales’ case did not indicate that it would
have imposed the same sentence as an alternative sentence. Also, the district
court did not express an intent to go outside of the guidelines range. Carrizales
has thus shown a reasonable probability that, but for the misapplication of the
Guidelines, he would have received a lesser sentence.             He has therefore
established that his substantial rights were violated. See Price, 516 F.3d at 289.
Moreover, the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See Price, 516 F.3d at 289-90 and n.28; United States v.
Villegas, 404 F.3d 355, 365 (5th Cir. 2005).
      SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




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