     Case: 16-40862         Document: 00513916426          Page: 1     Date Filed: 03/17/2017




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

                                         No. 16-40862                                   FILED
                                                                                   March 17, 2017
                                                                                   Lyle W. Cayce
Consolidated with 16-40865                                                              Clerk

UNITED STATES OF AMERICA,

                        Plaintiff - Appellee

v.

SANTOS DIAS,

                        Defendant - Appellant



                     Appeals from the United States District Court
                          for the Southern District of Texas
                               USDC No. 5:15-CR-1176-1
                               USDC No. 5:15-CR-1434-1



Before JONES and OWEN, Circuit Judges, and ENGELHARDT ∗, District
Judge.

PER CURIAM: ∗∗
       Santos Dias appeals his sentences for illegal reentry into the United
States and his supervised release violation, arguing that the district court



       ∗
           District Judge of the Eastern District of Louisiana, sitting by designation.

       ∗∗
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40862
                        Consolidated with No. 16-40865

erred in applying his sentences consecutively. Both the government’s counsel
and FPD share the blame for creating a sentencing error and leaving it
uncorrected by the district court. Such errors are deplorable. For the reasons
stated below, we are constrained to vacate and remand for resentencing.
                                BACKGROUND
      Santos Dias pleaded guilty in 2014 to illegally reentering the United
States following a prior deportation and was sentenced to time served plus a
one-year term of supervised release. In September 2015, while on supervised
release, Dias again entered the United States without authorization and was
indicted. The Government moved to revoke Dias’s prior supervised release.
Dias pled guilty to the new illegal reentry charge and true to the supervised
release violation. The advisory sentencing range relating to Dias’s new illegal
reentry conviction was fifteen to twenty-one months of imprisonment. The
advisory sentencing range for the violation of his supervised release was six to
twelve months. Dias does not argue that either of these ranges, determined by
the district court, is wrong.
      At the combined sentencing hearing, Dias argued for a below range
sentence for both charges, and, alternatively, that the district court consider
running the two sentences partially concurrently. The Government argued for
consecutive sentences toward the upper end of the guidelines range. During
the Government’s argument, the district court asked, “There’s a [Fifth] Circuit
case directly on point, is there not, that is [sic] must be served consecutively?,”
to which the prosecutor responded, “Yes, sir.” Counsel for the defendant made
no objection at that time to this errant question and answer. Taking “all
matters into account,” including the Pre-Sentencing Report (PSR) and the
arguments of counsel, the district court stated that it would “sentence within
the guidelines.” The district court imposed a sentence of sixteen months on
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                                 No. 16-40862
                        Consolidated with No. 16-40865

the new illegal reentry conviction and, after revoking Dias’s supervised release
from the prior illegal re-entry, imposed another sentence of eight months “to
run consecutively and in addition to the [sixteen]-month sentence.” Thus,
Dias’s total sentence was twenty-four months. Dias filed a timely notice of
appeal in both cases, challenging the district court order running the sentences
concurrently.
                          STANDARD OF REVIEW
      This court “typically review[s] a district court’s interpretation or
application of the Guidelines de novo,” but “where an appellant fails to
preserve the issue in the district court, this court’s review is limited to plain
error.” United States v. Gonzales, 642 F.3d 504, 505 (5th Cir. 2011). Dias
concedes that he did not contest this issue before the district court, and,
accordingly, plain error review is the appropriate standard. The plain error
review test consists of three elements: appellant must show “(1) error (2) that
is plain and (3) that affects his substantial rights.” United States v. Castillo-
Estevez, 597 F.3d 238, 240 (5th Cir. 2010). If the appellant satisfies these three
elements, the court will then determine whether to exercise its discretion.
“This court will correct plain errors only if they seriously affect the fairness,
integrity, or public reputation of judicial proceedings.” Id.
                                 DISCUSSION
      This court once held the relevant note to the Sentencing Guidelines
“plainly states that if the defendant committed the offense while on probation
and his probation has been revoked, the sentence should be imposed
consecutively,” but that decision was abrogated by the revised Sentencing
Guidelines in 2003. United States v. Alexander, 100 F.3d 24, 27 (5th Cir. 1996);
U.S.S.G. § 7B1.3(f). This court has since held that for those “sentenced on or
after November 1, 2003, the district court would have had discretion to make
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                                No. 16-40862
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its . . . sentence run concurrently (or partially concurrently) with the
previously imposed . . . sentence for supervised release revocation (although
the Commission recommends that the sentence imposed be consecutive to that
for the revocation).” United States v. Huff, 370 F.3d 454, 465 (5th Cir. 2004).
As a result, under the clear precedent of this court, the statement that the
district court was required to run the sentences consecutively was a plain error.
This, however, does not end the analysis, as we must determine whether the
error violated Dias’s substantial rights and whether it is appropriate to
exercise our discretion.
      For an error to affect the appellant’s substantial rights “the proponent of
the error must demonstrate a probability sufficient to undermine confidence in
the outcome.”    United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005)
(internal quotation marks omitted). The Supreme Court has held that the
defendant bears the burden of persuasion and this burden “should not be too
easy.” Id. (citing United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct.
2333, 2340 (2004)). In Molina-Martinez v. United States, the Supreme Court
resolved the issue of “how to determine whether the application of an incorrect
Guidelines range at sentencing affected the defendant’s substantial rights.”
136 S. Ct. 1338, 1345 (2016).     The district court in this case mistakenly
believed that the resulting range from the two sentences combined was twenty-
one to thirty-three months, when in fact it was actually fifteen months
(assuming sentences at the low end and run concurrently) to thirty-three
months (assuming sentences at the high end and run consecutively). While
Dias’s sentence of twenty-four months fits comfortably inside this range, it is
clearly at the low end of what the district court was led to believe was the
possible range. If the district court had opted for concurrent sentences, the
error could have affected Dias’s sentence by as much as eight months on a
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                                No. 16-40862
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twenty-four month sentence. Appellant has met his burden in this case, and
shown that the plain error affected his substantial rights.
      Finally, this court must determine that the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.”    Castillo-
Estevez, 597 F.3d at 240. The obviousness of this error foisted on the court by
both parties, together with the potential magnitude relative to the sentence
Dias received, causes this court to exercise our discretion to order remand. In
so doing, however, we express no view on the ultimate issues on resentencing
      We VACATE the sentence and REMAND for resentencing.




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