                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                       _________________

                                           No. 00-51276

                                       (Summary Calendar)
                                       _________________


               UNITED STATES OF AMERICA,


                                               Plaintiff - Appellee,

               versus


               DACIOUS HUNTER,


                                               Defendant - Appellant.



                           Appeal from the United States District Court
                               For the Western District of Texas
                                U.S.D.C. No. A-00-CR-35-2-JN

                                        September 24, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       Dacious Hunter (“Hunter”) appeals his sentence for distribution of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1). We vacate and remand for resentencing.

       Hunter pleaded guilty to distribution of crack cocaine. The Presentence Investigation Report


       *
               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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
(“PSR”) found that Hunter had a criminal history score of 10, resulting in a criminal history category

V. The PSR reached that total by including one point for Hunter’s conviction for driving with a

suspended license. The government moved for a one-level downward departure pursuant to U.S.S.G.

§ 5K1.1. The district court granted Hunter a three-level downward departure. Thus, the district

court found that Hunter had an offense level 30 and criminal history category V, resulting in a

guideline range of 151-188 months’ imprisonment. The district court sentenced Hunter to 151

months’ imprisonment and three years’ supervised release.

        On appeal, Hunter contends that the district court sentenced him under the incorrect criminal

history category because the PSR attributed one criminal history point to him based on his conviction

for driving with a suspended license which should have been excluded under U.S.S.G. § 4A1.2(c)(1).1

Alternatively, Hunter asserts that he received ineffective assistance of counsel because of his counsel’s

failure to object to this error.

        Because Hunter did not object in the district court to his criminal history score, we review this

claim for plain error only. See United States v. Hawkins, 87 F.3d 722, 730 (5th Cir. 1996). To show

plain error, Hunter must demonstrate: “(1) that there was error; (2) that it was clear and obvious;

and (3) that it affected the [his] substantial rights.” United States v. Cano-Guel, 167 F.3d 900, 905

(5th Cir. 1999). Even if Hunter meets these criteria, we exercise our discretion to reverse only if the

forfeited error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”



        1
                 As part of his plea agreement, Hunter waived his right to appeal his sentence. The
Government concedes that this waiver of appeal provision does not preclude Hunter from raising his
sentencing claim. We will not enforce a waiver of appeal provision “where the government explicitly
states that it ‘chooses not to rely on [the defendant’s] waiver of appeal.’” United States v. Rhodes,
253 F.3d 800, 804 (5th Cir. 2001). Accordingly, Hunter’s waiver does not preclude us from reaching
the merits of his appeal.

                                                  -2-
United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993).

        Hunter contends that his driving with a suspended license conviction should not have been

included in the calculation of his criminal history because it resulted in a five-day jail sentence.

U.S.S.G. § 4A1.2(c)(1) provides that a sentence for “driving without a license or with a revoked or

suspended license” is counted towards a defendant’s criminal history only if “the sentence was a term

of probation of at least one year or a term of imprisonment of at least thirty days, or [] the prior

offense was similar to an instant offense.” The government concedes, and we agree, that the

inclusion of this conviction was obvious error.

        Nonetheless, the government maintains that the district court’s error did not affect Hunter’s

substantial rights because the record reflects that the district court had a particular sentence in mind,

regardless of Hunter’s criminal history or category. We disagree. The inclusion of this point changed

his criminal history computation from 9 to 10, changing his criminal history category from IV to V.

As a result, the guideline range for his sentence would have been 135-168 months’ imprisonment.

In United States v. Cabral-Castillo, 35 F.3d 182, 189 (5th Cir. 1994), we found that even though the

defendant’s sentence fell within the correct guideline range “his sentence may well have been affected

by the district court’s error, particularly in light of the district court’s willingness to impose the lowest

sentence within the incorrect sentencing guidelines range.” Here, too, Hunter’s sentence falls within

the correct guideline range and the district court was willing to sentence Hunter to the lowest

sentence within the correct range. Thus, we find that Hunter’s substantial rights were affected.

        Further, we conclude that the exercise of our discretion to correct this error is warranted. We

have found that “generally, when a trial court incorrectly applies the United States Sentencing

Guidelines, . . . the fairness, int egrity, or public reputation of judicial proceedings is seriously


                                                    -3-
affected.” United States v. Alarcon, — F.3d —, No. 00-50071, 2001 WL 871776 at *5 (5th Cir.

Aug. 1, 2001). Moreover, while “we need not waste judicial resources by remanding for what

undoubtedly would be a ro te resentencing[,]” the record does not indicate that such would be the

result. As noted above, given that the district court sentenced Hunter to the minimum sentence

within the incorrect guideline range, had it correctly determined the criminal history category, it may

well have chosen to sentence Hunter to the minimum within the correct guideline range. United

States v. Hernandez-Guevara, 162 F.3d 863, 877 (5th Cir. 1998). Accordingly, we VACATE

Hunter’s sentence and REMAND for resentencing.2




       2
                We intimate no view as to the propriety of any sentence within the applicable
guidelines range. Given our resolution of Hunter’s sentencing claim, we need not address his
alternative claim of ineffective assistance of counsel.

                                                 -4-
