           IN THE UNITED STATES COURT OF APPEALS
                                            United States Court of Appeals
                    FOR THE FIFTH CIRCUIT            Fifth Circuit
                                                                                 F I L E D
                                                                                September 13, 2007
                                     No. 05-50231
                                   Summary Calendar                          Charles R. Fulbruge III
                                                                                     Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

JOSE DEVORE-ZUNIGA,
also known as Jose Devora-Zuniga

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                    for the Western District of Texas, El Paso
                           USDC No. 3:04-CR-2173-ALL


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Jose Devora-Zuniga pled guilty to one charge of illegal entry into the
United States. At sentencing, the district court calculated his Sentencing
Guideline range as 57 to 71 months and then selected a 50-month sentence.
Devora-Zuniga appeals that sentence. He argues that he should be re-sentenced
because the district court erred in calculating the sentencing range when it



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-50231

determined that his prior Colorado conviction for assault was a crime of violence.
We agree.
       1.       Devora-Zuniga failed to object to the district court’s classification of
                his Colorado assault conviction as a crime of violence. We therefore
                review that alleged error to determine whether it is plain, and if so,
                whether it affected Devora-Zuniga’s substantial rights. See United
                States v. Gonzales.1
       2.       As the Government concedes, the district court plainly erred when
                it determined Devora-Zuniga’s conviction for violating section 18-3-
                204 of the Colorado Revised Statutes was a crime of violence under
                U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Garcia.2 That
                error resulted in a Guideline range of 57 to 71 months; the correctly
                calculated range was 15 to 21 months.
       3.       The miscalculation also affected Devora-Zuniga’s substantial rights.
                In United States v. Jones, we explained that this court has applied
                two different tests to determine whether the defendant’s substantial
                rights had been violated when a non-Guideline sentence was given
                based on an incorrect Guideline calculation.3 At times, we have
                applied a subjective test and held that a defendant’s substantial
                rights are violated only when “there is a reasonable probability that,
                but for the misapplication of the guidelines, a lesser sentence would
                have been imposed.”4 Other times, we have applied an objective test



       1
           484 F.3d 712, 714 (5th Cir. 2007) (per curiam).
       2
         470 F.3d 1143, 1146–49 (5th Cir. 2006); see also Gonzalez, 484 F.3d at 714 (holding
that an incorrect Guideline calculation is an error that is plain).
       3
           444 F.3d 430, 434–38 (5th Cir. 2006), cert. denied 126 S. Ct. 2958 (2006).
       4
           Id. at 438 (citing United States v. Ravitch, 128 F.3d 865 (5th Cir. 1997)).

                                                 2
                                          No. 05-50231

                 and held that the proper inquiry is whether the district court “could”
                 have imposed the same sentence.5 This latter test requires us to
                 determine whether the sentence imposed was reasonable.6
                        In Jones, we declined to determine which test was the
                 appropriate one.7 We again reserve that issue for another day.
                 Devora-Zuniga’s sentence cannot pass muster under either test.
       5.        There is a reasonable probability that, but for the misapplication of
                 the Guidelines, Devora-Zuniga would have received a lesser
                 sentence. The Government argues that the district court based its
                 50-month sentence solely on the particulars of Devora-Zuniga’s case
                 (specifically, his criminal history), as 18 U.S.C. § 3553(a) required
                 it to, and the miscalculation that led to the Guideline sentence
                 therefore played no part in the ultimate 50-month sentence. The
                 Guideline sentencing range, however, is one of the § 3553(a) factors.
                 The district court’s discussion of Devora-Zuniga’s criminal history
                 and ultimate selection of a 50-month sentence was done with an eye
                 toward the Guideline range—as we have put it, the Guideline range
                 was the district court’s “frame of reference.”              United States v.
                 Walters.8 Given that the court’s frame of reference was significantly
                 off the mark—the Guideline range used (57 to 71 months) was
                 nearly four times as long as the correctly calculated range (15 to 21
                 months)—a reasonable probability exists that had the district court



       5
           Id. (citing United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)).
       6
           See id.
       7
           Id.
       8
         490 F.3d 371, 373 (5th Cir. 2007) (quoting United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006)).

                                                 3
                                       No. 05-50231

               correctly calculated the Guideline range, the sentence given would
               have been lower.
     6.        The district court’s sentence also was unreasonable.                 When a
               defendant is sentenced to a non-Guideline sentence, the district
               court is required to “more thoroughly articulate” its reasons for the
               sentence than it would have had it given a Guideline sentence.9
               Moreover, the further a defendant’s sentence varies from the
               correctly calculated Guideline range, the “more compelling the
               justification” must be for the sentence.10
                      Here, the sentence the defendant received (50 months) is over
               two times the top end of the correctly calculated Guideline range (15
               to 21 months). The district court handed out that sentence after
               briefly discussing the defendant’s criminal history and then
               concluding:     “Based on the information available to me, the
               circumstances of this case, and your particular circumstances, the
               court is going to find that a reasonable sentence in this case is 50
               months of incarceration.”          Given the difference between the
               defendant’s sentence and the correctly calculated Guideline range,
               the district court needed to provide a more compelling justification
               for the sentence. The sentence was therefore unreasonable.
Accordingly, we VACATE the sentence and REMAND for re-sentencing.




     9
          Id. (quoting Smith, 440 F.3d at 707).
     10
          Id. (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).

                                              4
