     Case: 16-40367   Document: 00514217933        Page: 1   Date Filed: 10/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 16-40367                           FILED
                                                                    October 31, 2017

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
             Plaintiff - Appellee

v.

RAFAEL RIOS MARROQUIN, also known as Tomas Andres Marroquin,

             Defendant - Appellant

consolidated with

16-40368

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

RAFAEL RIOS MARROQUIN,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas
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                                   No. 16-40367
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Rafael Rios Marroquin pleaded guilty to illegal reentry. He was
sentenced within the 21 to 27 months Guidelines range to 25 months in prison.
That range was based on a criminal history category of V, which applies to the
11 criminal history points assigned to Marroquin. Two of those points were for
a North Carolina conviction for a drug offense that occurred in 2005. Another
two points were for a North Carolina conviction for violating the same statute
in 2006. The North Carolina court had consolidated those two cases into a
single judgment and sentenced Marroquin to a single six-to-eight‐month
sentence.
      Marroquin argues that it was error to assign criminal history points for
both North Carolina offenses given that they were consolidated into a single
judgment.    Because he did not raise this objection in the district court,
Marroquin must show an error that was plain and that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he can do so, then
we have the discretion to remedy the error if it “seriously affect[s] the fairness,
integrity or public reputation” of the proceeding. Id. (alteration in original)
(citation omitted).
      He easily clears the first hurdle. It was error to score the consolidated
sentence twice.       The North Carolina “Consolidation of Sentences” statute
provides that if “an offender is convicted of more than one offense at the same
time, the court may consolidate the offenses for judgment and impose a single
judgment for the consolidated offenses.” N.C. GEN. STAT. ANN. § 15A-
1340.15(b). That is what the state court chose to do for Marroquin’s two
offenses: it consolidated them into a single judgment and imposed a single
sentence. Under the Guidelines, which assign criminal history points for “each
prior sentence” rather than each offense, that single sentence is assigned one
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                                 No. 16-40367
score.    U.S.S.G. § 4A1.1 (2014).   Straightforward interaction of the North
Carolina statute and the Sentencing Guidelines thus demonstrates that the
consolidated North Carolina offense should have received a single score. This
is also the view of the Fourth Circuit, see United States v. Davis, 720 F.3d 215,
219 (4th Cir. 2013), which is given deference in its interpretation of the law of
a state within its jurisdiction, see Phillips v. Washington Legal Found., 524
U.S. 156, 167 (1998). As the North Carolina offenses resulted in a single
sentence of at least sixty days but less than one year and one month, two points
should have been assigned instead of four. U.S.S.G. § 4A1.1(b).
         The government argues that any error was not obvious, relying on our
unpublished decision in United States v. Rodriguez-Prieto, 491 F. App’x 514
(5th Cir. 2012) (per curiam). But in Rodriguez-Prieto, the district court treated
a consolidated North Carolina sentence the way Marroquin’s should have been
treated: it assigned one criminal history score based on the sentence’s length.
Id. at 515 (explaining that one of the defendant’s North Carolina offenses was
not assigned any points because it was “counted together” as a result of the
consolidated sentence law).     At issue in Rodriguez-Prieto was the district
court’s decision to then add a single point for the North Carolina offense that
was not assigned ordinary criminal history points because it was an unscored
crime of violence. Id. This was pursuant to what was then section 4A1.1(f) of
the Guidelines (now section 4A1.1(e)), which adds one point for a sentence
“resulting from a conviction for a crime of violence that did not receive any
points” under the standard scoring rules. U.S.S.G. § 4A1.1(f) (2009) ); U.S.S.G.
§ 4A1.1(e) (2014). That provision does not apply to Marroquin’s drug offenses.
There nonetheless is some language in Rodriguez-Prieto that suggests it would
not be error to separately assess criminal history points for each of the
consolidated offenses.     Ambiguous language in an unpublished opinion
addressing a distinct issue is not enough, however, to undermine the clear
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                                 No. 16-40367
answer that the North Carolina statute, Sentencing Guidelines, and Fourth
Circuit case law provide to the question we confront. See United States v.
Silva-De Hoyos, 702 F.3d 843, 849 (5th Cir. 2012) (finding obvious error when
the unambiguous language of a statute revealed the error).
      The next issue is whether Marroquin can show that this obvious error
affected his sentence. Taking away the two points that should not have been
included reduces his criminal history category from a V to IV. That would
result in an advisory Guidelines range of 15 to 21 months instead of the range
of 21 to 27 months the court used in sentencing Marroquin. When “a defendant
is sentenced under an incorrect Guidelines range,” the error will usually result
in prejudice to the defendant. Molina-Martinez v. United States, 136 S. Ct.
1338, 1345 (2016). The prejudice is even stronger when the correct Guidelines
range is below the defendant’s sentence, as it is for Marroquin.
      But unique circumstances may overcome this rule that a Guidelines
error ordinarily will harm the defendant. Id. at 1346. The government tries
to show this is one of those atypical cases by arguing that another criminal
history scoring error inured to Marroquin’s benefit. Marroquin was convicted
of another North Carolina drug offense that like the consolidated sentence
resulted in a prison term of six to eight months. But the state court suspended
that sentence and placed Marroquin on 30 months’ supervised probation, with
30 days imprisonment as a condition of probation. The government contends
that Marroquin should have received two points instead of one for this
conviction because the court ordered that Marroquin receive credit for 119 days
that he served in custody prior to the suspension of the sentence. Those 119
days spent in custody should have, the government argues, resulted in two




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                                      No. 16-40367
points for this sentence rather than the one it was assigned in the PSR. 1 See
United States v. Fernandez, 743 F.3d 453, 455–56 (5th Cir. 2014) (discussing
the effect of a “time served ‘credit’”). That additional point would have kept
Marroquin in Category V even with a correction for the consolidated North
Caroline sentence. But the judgment is ambiguous at best about the effect of
the 119-day credit. The court checked a box saying the credit is being “applied
toward the . . . imprisonment required for special probation[.]” That term of
imprisonment was just 30 days. Not checked is a box that would have applied
the time served more generally to “the sentence imposed above.” Because the
credit may have just satisfied the 30-days in custody that was a condition of
probation, rather than the lengthier suspended sentence, the government has
not shown this to be a case in which prejudice did not result from an error that
affected the Guidelines range.
       That leaves the requirement that Marroquin show the error affected the
fairness, integrity, or reputation of the proceeding. This error that caused
Marroquin to be sentenced based on a misinterpretation of the state criminal
laws under which he had been convicted would create doubt about the integrity
of the process. And although the four-month disparity between his sentence
and the corrected Guidelines range is not sizeable, we have corrected errors
with a similar impact. See, e.g., United States v. Guillen-Cruz, 853 F.3d 768,
775–77 (5th Cir. 2017) (finding plain error when the imposed sentence was
eight months above the correct Guidelines range); United States v. Santacruz-
Hernandez, 648 F. App'x 456, 458 (5th Cir. 2016) (per curiam) (finding plain
error when the imposed sentence was two months above the correct Guidelines



       1The threshold for two points is 60 days, so the 30 days would count as one point but
119 days would count as two. See U.S.S.G. § 4A1.1(b), (c); see also id. § 4A1.2, cmt. n.2
(explaining that a probation sentence should be assigned one point “unless a condition of
probation requiring imprisonment of at least sixty days was imposed.”).
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                                  No. 16-40367
range); United States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir.
2008) (per curiam) (finding plain error when the imposed sentence was one
month above the correct Guidelines range). We choose to correct this error in
light of its effect on the sentence combined with the nature of the error.
      As a final note, Marroquin was simultaneously sentenced on his new
illegal reentry offense and for the revocation of his supervised release on a prior
one (he received a consecutive eight-month sentence for the revocation). The
appeals of the two were consolidated. Although Marroquin does not identify a
separate error in his revocation proceeding, the government agrees with him
that vacatur of the new sentence should also result in vacatur of the revocation
sentence so the district court can consider both anew given the potential impact
of one of the sentences on the other. So we remand for a full resentencing at
which the government can raise its argument about the 119-day credit.
                                   ***
      The judgments are VACATED and both matters are REMANDED for
resentencing.




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