     Case: 11-11123     Document: 00511936422         Page: 1     Date Filed: 07/27/2012




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

                                                                            FILED
                                                                            July 27, 2012
                                     No. 11-11123
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ABEL TREJO-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:11-CR-33-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Abel Trejo-Martinez (Trejo) appeals the 57-month sentence he received
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. For the first time on appeal, he contends that his offense level and
criminal history score were incorrectly calculated based on the improper use of
his 2002 Texas conviction for aggravated sexual assault because he was 17 at the
time of the offense, because he was sentenced to probation, and because that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11123     Document: 00511936422       Page: 2    Date Filed: 07/27/2012

                                    No. 11-11123

offense occurred more than five years prior to the instant offense.                The
Government concedes the error.
      Because the argument was not raised below, appellate review is for plain
error. See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). To prevail
under the plain-error standard, Trejo must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes that showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. Id.
      We agree with the parties that, under the plain language of the Guidelines
as applied to the undisputed facts, Trejo should not have received any criminal
history points for his 2002 Texas conviction. See U.S.S.G. § 4A1.2(d)(1) and
(2)(B). Additionally, because the 2002 Texas conviction should not have received
any criminal history points, it could not support a 16-level crime of violence
enhancement.       See § 2L1.2(b)(1)(A); see also United States Sentencing
Commission, Guidelines Manual, Supp. to Appendix C-Vol III, Amendment 754
at 404 (Nov. 1, 2011). Instead, Trejo should have been assessed a 12-level crime
of violence enhancement. See § 2L1.2(b)(1)(A).
      Trejo has demonstrated clear or obvious error. He has also demonstrated
that the error affected his substantial rights as the district court mistakenly
calculated the applicable guidelines range, the range used at sentencing was
significantly higher than the correct range of 25 to 33 months, and the 57-month
sentence imposed falls at the high end of the incorrect range, well above the
correct range. See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir.
2011). Moreover, nothing in the sentencing transcript suggests that the district
court would have imposed the same sentence in the absence of any error.
Because the district court’s error affects the fairness of these proceedings, we
exercise our discretion to correct it. See id.; see also Puckett, 556 U.S. at 135.



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  Case: 11-11123    Document: 00511936422    Page: 3   Date Filed: 07/27/2012

                                No. 11-11123

      Trejo’s argument that the district court erred in not requiring the
Government to move for a third point for acceptance of responsibility is
foreclosed by United States v. Newson, 515 F.3d 374, 376-79 (5th Cir. 2008).
Trejo concedes as much, but seeks to preserve the issue for further review.
      The sentence is VACATED, and the case is REMANDED FOR
RESENTENCING.




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