     Case: 12-51148      Document: 00512546299         Page: 1    Date Filed: 02/27/2014




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

                                                                                 FILED
                                    No. 12-51148                          February 27, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LORENZO VILLEGAS-ESPINOZA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1493-1


Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Lorenzo Villegas-Espinoza appeals the 70-month sentence imposed
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He contends that the district court plainly erred
when it assessed four criminal history points for two of his prior convictions
because the original sentences were imposed more than ten years prior to his
commission of the instant illegal reentry offense and the total term of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-51148

imprisonment on each conviction did not exceed one year and one month.
Because Villegas-Espinoza did not object to the calculation of his criminal
history category in the district court, we review for plain error. See United
States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012), cert. denied, 133
S. Ct. 1276 (2013).
      As the Government concedes, the district court erred in calculating
Villegas-Espinoza’s criminal history category, and the error was clear or
obvious. The presentence report (PSR) provides that on May 2, 2001, Villegas-
Espinoza pleaded guilty to disorderly conduct—unreasonable noise and was
sentenced to 30 days of imprisonment and 12 months of probation. On May 2,
2002, he pleaded guilty to driving while ability impaired with a prior DUI and
was sentenced to 180 days of imprisonment and 24 months of probation.
Although Villegas-Espinoza’s probation sentences were revoked on June 18,
2003, and June 19, 2003, respectively, the total term of imprisonment on each
conviction did not exceed one year and one month. Thus, the relevant dates
for purposes of U.S.S.G. § 4A1.2(e) were the dates of the original sentences.
See § 4A1.2(k)(2)(C); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.
2006).   Because Villegas-Espinoza’s original sentences were imposed more
than ten years before his illegal reentry on May 31, 2012, they should not have
been counted. See § 4A1.2(e)(1)-(3); Avalos-Martinez, 700 F.3d at 153; Arviso-
Mata, 442 F.3d at 385.
      In the absence of the four criminal history points, Villegas-Espinoza’s
criminal history category would have been III. With a total offense level of 21,
his guidelines imprisonment range would have been 46 to 57 months, rather
than the 70 to 87-month range calculated by the district court. There is no
overlap between the correct and incorrect guidelines ranges, and Villegas-
Espinoza’s 70-month sentence exceeds the top of the correct guidelines range



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                                 No. 12-51148

by 13 months. Further, it is not apparent from the record that Villegas-
Espinoza would have received an above-guidelines sentence of 70 months of
imprisonment had the district court correctly calculated his criminal history
category. Although the district court noted that Villegas-Espinoza had an
extensive criminal history, that 11 of his prior convictions had not been
assessed criminal history points, and that a downward variance was not
appropriate, the district court sentenced him at the bottom of the incorrect
guidelines range and did not state that it would have imposed the same
sentence regardless of the applicable guidelines range.            Under these
circumstances, a reasonable probability exists that, but for the district court’s
misapplication of the Guidelines, Villegas-Espinoza would have received a
lesser sentence. See United States v. Mudekunye, 646 F.3d 281, 289-91 (5th
Cir. 2011); United States v. John, 597 F.3d 263, 285 (5th Cir. 2010). Finally,
the significant disparity between the sentence imposed and the correct
guidelines range warrants the exercise of our discretion to correct the error.
See Mudekunye, 646 F.3d at 291; John, 597 F.3d at 286-89. Accordingly,
Villegas-Espinoza’s sentence is VACATED, and the case is REMANDED for
resentencing.
      Because we vacate and remand for resentencing, we need not address
Villegas-Espinoza’s argument that the sentence is substantively unreasonable
because it was greater than necessary to accomplish the sentencing goals set
forth in 18 U.S.C. § 3553(a).




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