     Case: 15-40260      Document: 00513511932         Page: 1    Date Filed: 05/18/2016




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

                                      No. 15-40260                         FILED
                                                                       May 18, 2016
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

              Plaintiff - Appellee

v.

SILVESTRE SANTACRUZ-HERNANDEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:15-CR-2-1


Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       While on supervised release, Silvestre Santacruz-Hernandez was
arrested for illegally reentering the United States. He pled “True” to violating
the conditions of his supervised release. The district court then selected an
incorrect Guidelines range and sentenced Santacruz-Hernandez to the top of
that range. We VACATE and REMAND.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40260
                     FACTUAL AND PROCEDURAL BACKGROUND
      Silvestre Santacruz-Hernandez is a Mexican citizen. In 2009, he pled
guilty to distributing methamphetamine and was sentenced to a term of
imprisonment and three years of supervised release.           The conditions of
supervised release required that, among other things, Santacruz “shall not
commit another federal, state, or local crime.”
      In November 2014, Santacruz’s probation officer filed a petition seeking
revocation of supervised release.      The probation officer alleged Santacruz
illegally reentered the country in violation of the general condition that he not
commit another crime during his term of supervision.              Santacruz was
separately charged with illegal reentry. He pled guilty to the illegal reentry
charge and “True” to violating supervised release.
      The court imposed a sentence of 57 months’ imprisonment on the illegal
reentry conviction. For violating supervised release, the district court solicited
sentencing recommendations from the probation officer and both parties. The
probation officer said: “[T]he guideline is 6 to 12 months. We’re recommending
12 months . . . .”    The prosecutor said: “The bottom of the guideline . . . .”
Defense counsel said: “[W]e’re asking for the minimum . . . .”
      The district court revoked Santacruz’s supervised release and sentenced
him to 12 months, to be served after the illegal reentry sentence of 57 months’
imprisonment. The court provided no explanation for its 12 month revocation
sentence. There was no objection at sentencing. Santacruz timely appealed.


                                     DISCUSSION
      The only issue on this appeal is whether the district court relied on an
incorrect Guidelines range when sentencing.        Santacruz did not object at
sentencing, so we review for plain error. Puckett v. United States, 556 U.S.
129, 135 (2009).      To demonstrate plain error, an appellant must show a
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                                 No. 15-40260
forfeited error that is clear or obvious and that affects his substantial rights.
Id. If the appellant makes such a showing, we have discretion to correct the
error but only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id.
      The district court committed error — error that is clear or obvious —
when it relied on an incorrect Guidelines range. Both parties acknowledge
Santacruz’s illegal reentry constituted a Grade B violation of his conditions of
supervised release. See U.S.S.G. § 7B1.1(a)(2) (defining Grade B violations).
Both parties also acknowledge that Santacruz’s applicable Criminal History
Category was I. The Grade B violation, paired with the Criminal History
Category of I, should have resulted in an advisory range of 4 to 10 months. Id.
§ 7B1.4(a). The district court clearly erred, however, relying on the incorrect
range of 6 to 12 months provided by the probation officer.
      Further, the error affected Santacruz’s substantial rights. In reviewing
a criminal sentence for plain error, an appellant can satisfy this third prong if
he “can show a reasonable probability that, but for the district court’s error,
the appellant would have received a lower sentence.” United States v. Davis,
602 F.3d 643, 647 (5th Cir. 2010). The Supreme Court recently instructed that,
“[i]n most cases a defendant who has shown that the district court mistakenly
deemed applicable an incorrect, higher Guidelines range has demonstrated a
reasonable probability of a different outcome.” Molina-Martinez v. United
States, 136 S. Ct. 1338, 1346 (2016). The Court reasoned that a Guidelines
range represents “the lodestar” for sentencing; it “inform[s] and instruct[s] the
district court’s determination of an appropriate sentence.” Id. Thus, a district
court’s “selected Guidelines range” will typically influence the imposed
sentence. Id. We agree with another recent decision that Molina-Martinez
creates doubt about caselaw that reflected a “reluctance” to find an effect on
substantial rights if the correct and incorrect ranges overlapped. United States
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                                       No. 15-40260
v. Martinez-Rodriguez, No. 13-41292, 2016 WL 2772272, at *3 (5th Cir. May
12, 2016). We find no reason to let an overlap control the result in this case.
       A district court’s mistaken application of an incorrect Guidelines range
is not a per se error affecting a defendant’s substantial rights. “The record in
a case may show, for example, that the district court thought the sentence it
chose was appropriate irrespective of the Guidelines range.” Molina-Martinez,
136 S. Ct. at 1346.        Here, though, the district court did not provide any
explanation for its revocation sentence. There is no indication the district court
imposed a 12 month sentence irrespective of the wrongly selected 6 to 12 month
Guidelines range. 1
       Finally, the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. On this fourth step of plain error review,
we have discretion to correct an unpreserved error where “a miscarriage of
justice would otherwise result.” United States v. Olano, 507 U.S. 725, 736
(1993). In this case, the district court imposed a sentence (12 months) at the
top end of the incorrectly selected Guidelines range (6 to 12 months) and two
months above the correct Guidelines range (4 to 10 months).                         In past
unpublished decisions, we have vacated sentences involving similar errors.
See, e.g., United States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir.
2008) (finding plain error where the imposed sentence was one month above
the correct Guidelines range). We now do the same.
       VACATED and REMANDED.




       1 The Government suggests there is some evidence that, even if the district court had
adopted the correct Guidelines range, it would have imposed the same 12 month sentence.
In support, the Government identifies a colloquy during sentencing between the district court
and the probation officer about Santacruz’s Criminal History Category. The colloquy is taken
out of context and is not persuasive. In that portion of the sentencing hearing, the district
court was reviewing the presentence report for Santacruz’s illegal reentry conviction, not his
independent charge for violating supervised release.
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