     Case: 18-11176      Document: 00515102943         Page: 1    Date Filed: 09/04/2019




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

                                      No. 18-11176                           FILED
                                                                     September 4, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

              Plaintiff - Appellee

v.

RICKY LOVELY, also known as Lil Rickey,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-539-1


Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Ricky Lovely pleaded guilty to one count of possessing stolen firearms
and aiding and abetting. The presentence report (PSR) determined Lovely had
a total offense level of 21. It assigned him four criminal history points, placing
him in Criminal History Category III. As a result, Lovely faced a Sentencing
Guidelines range of 46 to 57 months. The district court sentenced Lovely to the
bottom of that range—46 months—followed by two years of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-11176       Document: 00515102943          Page: 2     Date Filed: 09/04/2019


                                       No. 18-11176

Lovely timely appealed, arguing for the first time that the district court erred
in calculating his total criminal history points. 1
       Because, as Lovely concedes, he failed to object to the asserted error
below, we review for plain error. See United States v. Soza, 874 F.3d 884, 889
(5th Cir. 2017). “A finding of plain error requires [Lovely] to make four
showings: 1. there must have been an error; 2. that was plain; 3. that affected
the defendant’s substantial rights; and 4. that ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” United States v.
Urbina-Fuentes, 900 F.3d 687, 691–92 (5th Cir. 2018) (quoting United States
v. Olano, 507 U.S. 725, 731–35 (1993)).
       The first two prongs—“error” that was “plain”—are conceded by the
government. The PSR assigned Lovely a criminal history point based on a
Texas guilty-plea conviction for evading arrest, for which he was sentenced to
fifteen days in jail. That was a clear mistake: The Guidelines instruct that
certain prior offenses 2 count against a defendant’s criminal history only if the
sentence was “a term of imprisonment of at least thirty days.” U.S.S.G.
§ 4A1.2(c)(1) (emphasis added).
       The government instead focuses on prongs three and four. It claims both
that the error did not affect Lovely’s substantial rights and also that it does
not warrant the exercise of this court’s discretion to remand. We disagree.
       A sentencing error affects a defendant’s substantial rights if he shows “‘a
reasonable probability that, but for the district court’s misapplication of the


       1 At sentencing, Lovely filed other objections to the calculation of his Guidelines range
not relevant to this appeal.
       2 Our court has determined that the Texas offense of “evading arrest” is sufficiently
similar to the offense of “resisting arrest” enumerated in § 4A1.2(c)(1) of the Guidelines. See,
e.g., United States v. Alfaro, 408 F.3d 204, 210 (5th Cir. 2005); United States v. Rivas-
Martinez, 120 F. App’x 533, 534 (5th Cir. 2004); United States v. Moore, 997 F.2d 30, 33–34
& n.2 (5th Cir. 1993).


                                               2
    Case: 18-11176     Document: 00515102943     Page: 3   Date Filed: 09/04/2019


                                  No. 18-11176

Guidelines, he would have received a lesser sentence.’” United States v. Islas-
Saucedo, 903 F.3d 512, 520 (5th Cir. 2018) (quoting United States v. Martinez-
Rodriguez, 821 F.3d 659, 663–64 (5th Cir. 2016)). The Supreme Court has
instructed that “[w]hen a defendant is sentenced under an incorrect Guidelines
range—whether or not the defendant’s ultimate sentence falls within the
correct range—the error itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the error.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). That is the case here.
Had the district court not incorrectly added a criminal history point for evading
arrest, Lovely would have had three points instead of four, placing him in
Category II instead of III. As a result, Lovely’s Guidelines range would have
been 41 to 51 months, instead of 46 to 57 months. See, e.g., United States v.
Perez-Mateo, 926 F.3d 216, 220 (5th Cir. 2019) (finding defendant’s substantial
rights were affected where district court relied on incorrect Guidelines range).
      Nonetheless, the government claims there is no “reasonable probability”
Lovely would have received a lesser sentence under the correct range, pointing
to the fact that the district court rejected Lovely’s bid for a downward variance.
We disagree. In some cases, the court’s explanation of the sentence “could make
it clear that the judge based the sentence he or she selected on factors
independent of the Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. That is
not the case here. In rejecting a downward variance, the district court
expressly noted that Lovely’s sentence “should be within the advisory guideline
range.” See, e.g., Perez-Mateo, 926 F.3d at 220 (determining defendant’s
substantial rights were affected where “[t]he Guidelines range clearly
‘inform[ed] and instruct[ed] the district court’s determination of an appropriate
sentence’” (quoting Molina-Martinez, 136 S. Ct. at 1346)). We thus conclude




                                        3
    Case: 18-11176    Document: 00515102943     Page: 4   Date Filed: 09/04/2019


                                 No. 18-11176

Lovely has shown a reasonable probability that the Guidelines error affected
his substantial rights.
      Finally, we may exercise “discretion” to correct a plain error “only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Islas-Saucedo, 903 F.3d at 521. This standard is typically met
when failure to correct a plain Guidelines error affects a defendant’s
substantial rights. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911
(2018). However, “[t]here may be instances where countervailing factors
satisfy the court of appeals that the fairness, integrity, and public reputation
of the proceedings will be preserved absent correction.” Id. at 1909; see also,
e.g., Perez-Mateo, 926 F.3d at 220 (discussing possibility of “‘countervailing
factors’ that obviate any need for error correction” (quoting Rosales-Mireles,
138 S. Ct. 1897, 1909 (2018))). The government contends this case presents one
such factor because Lovely “advocated” for a sentence of “no more than 46
months.” We disagree. By arguing for “no more than 46 months,” Lovely was
merely asking the court to sentence him at the bottom of the 46–57 month
Guidelines range, which at the time everyone thought was the correct one. The
government points to no other countervailing factor that might justify denial
of relief under the plain error framework.
      We therefore VACATE Lovely’s sentence and REMAND for resentencing
consistent with this opinion.




                                       4
