     Case: 16-40884      Document: 00514862606         Page: 1    Date Filed: 03/07/2019




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


                                      No. 16-40884                              FILED
                                                                            March 7, 2019
                                                                           Lyle W. Cayce
Consolidated with 16-40887                                                      Clerk

UNITED STATES OF AMERICA,

              Plaintiff–Appellee,

v.

AURELIANO VILLARREAL-GARCIA,

              Defendant–Appellant.




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 5:16-CR-81-1
                            USDC No. 5:15-CR-1406-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before JONES, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       In 2017, we affirmed Aureliano Villarreal-Garcia’s conviction and
sentence for illegal reentry after deportation. We concluded that the district
court plainly erred at sentencing but determined that the error did not affect


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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“the fairness, integrity, or public reputation of judicial proceedings.”     The
United States Supreme Court granted a writ of certiorari, vacated our
judgment, and remanded for further consideration. We vacate and remand for
resentencing.
                                       I
      In 2014, Aureliano Villarreal-Garcia pleaded guilty after a grand jury
indicted him for illegal reentry. The district court sentenced him to fifteen
months of imprisonment, followed by three years of supervised release. The
conditions of supervised release prohibited him from illegally reentering the
United States if he was deported. Villarreal-Garcia served his prison sentence
and was deported to Mexico in 2015. A few months later, before the term of
supervised release expired, he was found in the United States.
      A grand jury indicted Villarreal-Garcia for illegal reentry. In 2016, the
district court accepted his guilty plea. The Government sought to revoke his
supervised release in his 2014 illegal reentry case. The district court sentenced
him to twenty-four months for the new illegal reentry conviction and twelve
months for the supervised release revocation. The district court determined
that the terms must run consecutively. The district court also sentenced him
to three years’ supervised release upon his release from prison. The parties
agree that on June 8, 2018, Villarreal-Garcia completed his prison sentence
and was subsequently deported.
      While still imprisoned, Villarreal-Garcia appealed his prison sentence,
arguing that the district court applied an improper sentencing range and
improperly concluded that his sentences must run consecutively. On appeal,
we agreed with Villarreal-Garcia that the district court plainly erred with
regard to the sentencing range and by concluding that the sentences must run


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consecutively. 1 The correctly calculated Guidelines range was 21 to 45 months,
rather than the cumulative 36 to 48 month range applied by the district court. 2
However, because we concluded that the thirty-six month sentence did not
affect “the fairness, integrity, or public reputation of judicial proceedings,” we
declined to exercise our discretion to correct the plain error. 3
      After we affirmed the district court’s judgment, the Supreme Court
decided Rosales-Mireles v. United States regarding the standard of review for
determining whether the fairness, integrity, or public reputation of judicial
proceedings will be preserved absent correction to a sentence. 4 The Supreme
Court remanded Villarreal-Garcia’s case and instructed this court to consider
the appeal in light of Rosales-Mireles. 5 Further, because Villarreal-Garcia only
challenged the length of his sentence and he had completed the sentence and
was deported before the Supreme Court remanded, the Court also instructed
this court to consider whether the appeal is moot. 6 We requested supplemental
briefing as to (1) whether the appeal is moot, and (2) how Rosales-Mireles
affects the fourth prong of plain-error review in this case.
                                           II
      Villarreal-Garcia concedes that the appeal of his twelve-month sentence
upon revocation of the supervised release is moot but maintains that the
appeal of his twenty-four month sentence is not. The Government argues that




      1  United States v. Villarreal-Garcia, 685 F. App’x 297, 297-98 (5th Cir. 2017) (per
curiam), vacated, 138 S. Ct. 2701 (2018).
      2 Id.
      3 Id. at 298-99.
      4 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908-09 (2018).
      5 Villarreal-Garcia, 138 S. Ct. at 2702.
      6 Id.

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the appeal is moot because Villarreal-Garcia did not challenge on appeal his
term of supervised release.
       “A controversy is mooted when there are no longer adverse parties with
sufficient legal interests to maintain the litigation. A moot case presents no
Article III case or controversy, and a court has no constitutional jurisdiction to
resolve the issues it presents.” 7              “Once the convict’s sentence has
expired . . . some ‘collateral consequence’ of the conviction . . . must exist if the
suit is to be maintained.” 8 We review the question of mootness de novo. 9
      Although Villarreal-Garcia has completed his twenty-four-months’
sentence for the 2016 illegal reentry, he remains subject to a three-year term
of supervised release.           The district court may alter or terminate
Villarreal-Garcia’s term of supervised release on resentencing if it determines
that the defendant was incarcerated beyond the term of the sentence that
would have been imposed had there not been error in the original sentencing. 10
Because Villarreal-Garcia is subject to a term of supervised release that is
subject to modification by the district court, his appeal is not moot. 11
                                           III
      When, as here, an objection is forfeited, we review only for plain error. 12
“Plain error review requires four determinations: whether there was error at
all; whether it was plain or obvious; whether the defendant has been



      7  United States v. Lares-Meraz, 452 F.3d 352, 354-55 (5th Cir. 2006) (quoting Goldin
v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999)).
       8 Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citation omitted).
       9 Lares-Meraz, 452 F.3d at 355 (citation omitted).
       10 Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per curiam); see also

Lares-Meraz, 452 F.3d at 355.
       11 Johnson, 442 F.3d at 918; Lares-Meraz, 452 F.3d at 355.
       12 United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir 2012) (citations

omitted).
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substantially harmed by the error; and whether this court should exercise its
discretion to correct the error in order to prevent a manifest miscarriage of
justice.” 13   We have already determined that the first three prongs of
plain-error review are satisfied. 14               The only remaining issue is how
Rosales-Mireles affects our fourth prong analysis. Villarreal-Garcia argues
that Rosales-Mireles makes clear that the fourth prong is satisfied.                       The
Government does not address Rosales-Mireles.
        In Rosales-Mireles, the Supreme Court held that “[i]n the ordinary
case . . . the failure to correct a plain Guidelines error that affects a defendant’s
substantial rights will seriously affect the fairness, integrity, and public
reputation of judicial proceedings.” 15 The Court said that such an error “is
precisely the type of error that ordinarily warrants relief under Rule 52(b).” 16
In Rosales-Mireles, an error in the calculation of the prisoner’s criminal history
caused the district court to consider an incorrect Guidelines range of 77 to 96
months of imprisonment instead of the correct range of 70 to 87 months. 17
“[A]n error resulting in a higher range than the Guidelines provide usually
establishes a reasonable probability that a defendant will serve a prison
sentence that is more than ‘necessary’ to fulfill the purposes of the
incarceration.” 18 Further, “[t]he risk of unnecessary deprivation of liberty
particularly undermines the fairness, integrity, or public reputation of judicial
proceedings in the context of a plain Guidelines error because of the role the



       13 Id. (citing United States v. Olano, 507 U.S. 725 (1993); United States v. Infante, 404
F.3d 376, 394 (5th Cir. 2005)).
       14 United States v. Villarreal-Garcia, 685 F. App’x 297, 297-98 (5th Cir. 2017) (per

curiam), vacated, 138 S. Ct. 2701 (2018).
       15 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018).
       16 Id. at 1907.
       17 Id. at 1905.
       18 Id. at 1907 (quoting 18 U.S.C. § 3553(a)).

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district court plays in calculating the range and the relative ease of correcting
the error.” 19 The Court noted that “[t]he mere fact that [a] sentence falls within
the corrected Guidelines range does not preserve the fairness, integrity, or
public reputation of the proceedings.” 20           Likewise, a defendant’s criminal
history “does not help explain whether [a] plain procedural error . . . seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” 21
Still, any exercise of discretion under the fourth prong “inherently requires ‘a
case-specific and fact-intensive’ inquiry.” 22
         This case falls within the “ordinary” range of cases in which this court
should exercise its discretion to correct sentencing errors. Villarreal-Garcia’s
recidivism and criminal history, which we previously cited as bases not to
correct the errors, 23 “are no longer relevant to a consideration of whether this
court should exercise its discretion to correct an error after Rosales-Mireles.” 24
There is “proof of a plain Guidelines error that affect[ed his] substantial
rights,” 25 and we are unaware of any “countervailing factors” to warrant a
deviation from the ordinary rule. 26
                                     *        *         *
         For the foregoing reasons, we VACATE Villarreal-Garcia’s sentence and
REMAND for resentencing.



         19 Id. at 1908.
         20 Id. at 1910.
         21 Id. at 1910 n.5; United States v. Sanchez-Arvizu, 893 F.3d 312, 317-18 (5th Cir.

2018).
          Id. at 1909 (quoting Puckett v. United States, 556 U.S. 129, 142 (2009)).
         22

          United States v. Villarreal-Garcia, 685 F. App’x 297, 298-99 (5th Cir. 2017) (per
         23

curiam), vacated, 138 S. Ct. 2701 (2018).
       24 United States v. Solano-Hernandez, No. 15-41554, 2019 WL 626151, at *5 (5th Cir.

Feb. 13, 2019) (unpublished).
       25 Rosales-Mireles, 138 S. Ct. at 1909 n.4.
       26 See id. at 1909.

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