     Case: 14-40667      Document: 00512972936         Page: 1    Date Filed: 03/18/2015




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                                    No. 14-40667                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                       March 18, 2015

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
                                                 Plaintiff-Appellee

v.

NINO RODRIGUEZ, also known as Nino Ruben Rodriguez, also known as
Ruben Rodriguez-Nino, also known as Ruben Rodriguez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-191-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In 2003, in Texas state court, Defendant-Appellant Nino Rodriguez
pleaded guilty to aggravated assault with a deadly weapon, a second degree
felony under Texas law, see TEX. PENAL CODE § 22.02, and was placed on
deferred adjudication community supervision.            His deferred adjudication was
revoked in 2004 and he was deported in 2006.               In 2014, in federal district
court, Rodriguez pleaded guilty to illegal reentry subsequent to deportation.
See 8 U.S.C. ' 1326(b). The district court sentenced him to forty-six months


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40667    Document: 00512972936        Page: 2   Date Filed: 03/18/2015

                                 No. 14-40667

in prison and three years of supervised release.     Rodriguez then filed a timely
notice of appeal.
      Counsel appointed to represent Rodriguez on appeal has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).     We
have reviewed counsel=s brief and the relevant record reflected therein.
Although we concur with the counsel=s assessment that the appeal presents no
non-frivolous issue for appellate review with regard to most of the issues
directly addressed in the Anders brief, the brief fails to adequately address two
issues:   (1) whether Rodriguez was properly convicted and sentenced under '
1326(b)(2), which carries a maximum twenty-year prison term, rather than
under ' 1326(b)(1), which carries a maximum ten-year prison term; and (2)
whether the district court erred in calculating Rodriguez’s criminal history
score under U.S. Sentencing Guidelines Manual (U.S.S.G.) ' 4A1.2(k), which
resulted in a criminal history score of three, rather than under ' 4A1.2(f),
which would have resulted in a criminal history score of one.
      First, counsel’s Anders brief fails to adequately address whether the
district court erred when it sentenced Rodriguez under ' 1326(b)(2).           The
presentence report (PSR) stated that under ' 1326(b)(2) Rodriguez was subject
to a twenty-year maximum sentence for reentry of a removed alien whose
removal was subsequent to a conviction of an “aggravated felony.”         The final
judgment also cites ' 1326(b)(2) as the sentencing statute.      Unlawful reentry
of a removed alien whose removal was subsequent to a conviction of a felony,
as opposed to an aggravated felony, is sentenced under ' 1326(b)(1), which
carries a ten-year maximum sentence, as opposed to the twenty-year maximum
sentence of ' 1326(b)(2). See United States v. Mondragon-Santiago, 564 F.3d
357, 369 (5th Cir. 2009).   For Rodriguez’s Texas conviction to qualify as a
conviction of an “aggravated felony” under ' 1326(b)(2), it must have resulted

                                       2
     Case: 14-40667       Document: 00512972936         Page: 3     Date Filed: 03/18/2015

                                       No. 14-40667

in a term of imprisonment of at least one year.            See 8 U.S.C. ' 1101(a)(43)(F)
(defining “aggravated felony” for purposes of, inter alia, ' 1326).                We have
held that because “[d]eferred adjudication probation in Texas does not impose
a sentence of imprisonment, and thus does not involve a ‘term of
imprisonment,’” deferred adjudication cannot be considered a conviction of an
aggravated felony under ' 1326(b)(2).          Mondragon-Santiago, 564 F.3d at 368-
69; United States v. Arias, 481 F. App=x 234, 235 (5th Cir. 2012) (unpublished)
(applying Mondragon-Santiago and reasoning that revocation of a deferred
adjudication is irrelevant for purposes of ' 1326(b)(1)).
       Counsel’s Anders brief fails to analyze whether the district court
properly applied ' 1326(b)(2) instead of ' 1326(b)(1).                   Instead, counsel
suggests that an appeal of the issue would be frivolous because, even if the
district court should have applied ' 1326(b)(1), the sentencing statute had no
impact on the sentence the district court ultimately imposed. 1                      But, if
Rodriguez was improperly convicted under a statute with double the
sentencing exposure of the properly applicable statute, it may call into question
the voluntariness of Rodriguez’s guilty plea and the corresponding validity of
Rodriquez’s waiver of his right to appeal his guilty plea. 2                See Dunlap v.


       1 Counsel’s Anders brief does adequately address the district court’s decision not to
apply the more lenient § 1326(a), which carries a two-year maximum sentence. In a single
sentence at the conclusion of that analysis, counsel notes that “there is no indication in the
record that Mr. Rodriguez’s alleged status as an ‘aggravated felon’ had any impact at all on
his sentence, and his forty-six-month prison sentence is well below the ten-year statutory
maximum even for an offense under 8 U.S.C. § 1326(b)(1).” This one-sentence conclusion is
inadequate to allow for meaningful review of this issue. See Anders, 386 U.S. at 742-43;
United States v. Garland, 632 F.3d 877, 880 (5th Cir. 2011).
       2 Counsel’s Anders brief pretermits discussion of Rodriguez=s guilty plea in light of
Rodriguez=s written confirmation in the record that he wishes only to appeal his sentence and
not his conviction. See Garcia v. United States, 483 F.3d 289, 291 (5th Cir. 2007) (holding
that counsel may only pretermit analysis of a guilty plea in an Anders brief with documented
confirmation that the defendant decided to forgo a challenge to the plea). Whether
Rodriguez knowingly and voluntarily waived his right to appeal his plea, notwithstanding
the documentation of Rodriguez=s waiver, may depend on whether the district court

                                              3
     Case: 14-40667       Document: 00512972936          Page: 4     Date Filed: 03/18/2015

                                       No. 14-40667

United States, 462 F.2d 163, 164 (5th Cir. 1972) (A[I]n the event a defendant
enters his guilty plea without full knowledge of the maximum consequences
thereof, his plea is invalid and must be set aside.@).              The PSR available to
Rodriguez when he entered his guilty plea may have employed an incorrect
sentencing statute, and if so, Rodriguez may not have been aware of the
maximum consequences of that guilty plea.               Therefore, there may be a non-
frivolous argument on appeal that Rodriguez did not knowingly and
voluntarily plead guilty or waive his right to appeal his plea.                See Baty, 980
F.2d at 979-80; Dunlap, 462 F.2d at 164.
       Second, counsel=s Anders brief fails to address whether the district court
applied the proper U.S.S.G. provision when it calculated Rodriguez=s criminal
history score.         The court applied ' 4A1.2(k), entitled ARevocations of
Probation, Parole, Mandatory Release, or Supervised Release.@                       Applying
' 4A1.2(k),      the     district     court     Aadd[ed]      the     original     term      of
imprisonment”―which it set as zero years for the deferred adjudication
community supervision―“to any term of imprisonment imposed upon
revocation@ to calculate the total term of imprisonment, yielding a criminal
history score of three. See ' 4A1.2(k)(1).            Arguably, a plain reading of the
guidelines suggests that deferred adjudications should be treated under
' 4A1.2(f), which is entitled ADiversionary Dispositions@ and covers diversions
of the judiciary process such as deferred adjudications, rather than under
' 4A1.2(k), which expressly contemplates an “original term of imprisonment”
that is not present in a deferred adjudication.                   Had the court applied
' 4A1.2(f) rather than ' 4A1.2(k), the guidelines would have yielded a criminal


erroneously sentenced Rodriguez under a subsection of the statute that carries a higher
maximum sentence than Rodriguez should actually have been exposed to. See, e.g., United
States v. Baty, 980 F.2d 977, 979-80 (5th Cir. 1992) (“[The defendant] did not effectively waive
her right to appeal because she did not understand the consequences of the waiver when she
pled guilty.”).

                                               4
    Case: 14-40667       Document: 00512972936    Page: 5   Date Filed: 03/18/2015

                                   No. 14-40667

history score of one. Although our precedent does not dictate which one of
these two subsections applies here and plain error review sets a high bar for
the appellant to overcome, counsel seeking to withdraw under Anders must
provide some basis in the Anders brief for this court to review whether a non-
frivolous issue exists with respect to how the district court calculated the
guideline range.     See Garland, 632 F.3d at 880.    Counsel has failed to meet
that minimum standard here because the Anders brief omits any discussion of
this issue. See id.
         In sum, after review of the relevant portions of the record, we find that
there may be non-frivolous issues on appeal that counsel failed to adequately
brief.    We do not decide today whether Rodriguez will be able to establish,
under plain error review, that the district court’s sentencing errors were clear
or obvious and affected Rodriguez=s substantial rights, Puckett v. United
States, 556 U.S. 129, 135 (2009), or that Rodriguez’s guilty plea was not
knowing and voluntary.         However, when considering counsel=s motion to
withdraw under Anders, “the question before us is not whether [the defendant]
is likely to prevail . . . , but instead only whether there is a non-frivolous
[]argument that even can be offered.” See, e.g., United States v. Davis, 291
F. App’x 563, 567 (5th Cir. 2008) (unpublished).
         Accordingly, counsel is directed to file supplemental briefing under
Anders to address these issues or, in the alternative, file a merits brief.
Counsel’s motion for leave to withdraw is DENIED, subject to our
reconsideration of counsel=s supplemental briefing consistent with this opinion.




                                         5
