     Case: 18-40211   Document: 00515049108       Page: 1   Date Filed: 07/25/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 18-40211                   United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                     July 25, 2019
UNITED STATES OF AMERICA,
                                                                    Lyle W. Cayce
             Plaintiff-Appellee,                                         Clerk


v.

AGUSTINE SANCHEZ-HERNANDEZ, also known as Augustin Sanchez,

             Defendant-Appellant.



                Appeal from the United States District Court
                     for the Southern District of Texas


Before JONES, HO, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      IT IS ORDERED that our prior panel opinion, United States v. Sanchez-
Hernandez, 927 F.3d 851 (5th Cir. 2019), is WITHDRAWN and the following
opinion is SUBSTITUTED therefor.
      Agustine Sanchez-Hernandez argues the district court plainly erred in
calculating his Guidelines range at sentencing. That calculation was based on
treating his prior state court convictions—for exposing himself to and sexually
assaulting a fourteen-year-old girl—as crimes of violence. We affirm.
                                        I.
      On October 17, 2017, Sanchez-Hernandez illegally entered the United
States for the third time. When officers approached him, Sanchez-Hernandez
admitted he had recently waded across the Rio Grande river. So the federal
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government charged him with illegally reentering the country after having
been previously removed. 8 U.S.C. § 1326(a)–(b). Sanchez-Hernandez pleaded
guilty on December 6, 2017.
       Prior to the scheduled sentencing hearing, the probation office prepared
a Pre-Sentence Report (“PSR”). It assigned an offense level of 17 and a criminal
history category of IV, which yielded a Guidelines range of 37 to 46 months in
prison. 1 Those calculations were based in part on Sanchez-Hernandez’s prior
criminal history.
       First, in 2010, he pleaded guilty to indecency with a child. TEX. PENAL
CODE § 21.11. After dancing with a fourteen-year-old girl at a banquet hall,
Sanchez-Hernandez took her outside, began kissing her, unzipped his pants,
exposed himself, grabbed the girl’s hands, and put them on his penis.
       Second, also in 2010, a Texas jury convicted Sanchez-Hernandez of
sexually assaulting a child based on the same incident. Id. § 22.011. After
forcing the girl to touch him, Sanchez-Hernandez put his penis in the girl’s
mouth. The state court sentenced him to concurrent two-year sentences for
both offenses and required him to register as a sex offender. Upon his release
in 2012, the federal government removed him to Mexico.
       Third, in 2014, Sanchez-Hernandez pleaded guilty to illegal reentry. 8
U.S.C. § 1326(a)–(b). Just one month after the government removed him to
Mexico, Sanchez-Hernandez rafted across the Rio Grande back into Texas. The
federal court sentenced him to 41 months in prison.
       The PSR determined these offenses warranted 7 criminal history points.
It assigned 3 points for the indecency offense and 3 points for the illegal reentry



       1  The PSR initially assigned an offense level of 18, which yielded a Guidelines range
of 41 to 51 months. But it also assigned an alternative level-17 calculation in the event the
district court awarded a 1-point decrease for acceptance of responsibility. At sentencing, the
government sought—and the district court granted—the additional 1-point reduction.
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offense under § 4A1.1. Then the PSR added 1 additional criminal history point
under § 4A1.2(a)(2) and § 4A1.1(e) because it treated the two sex offenses as
“crimes of violence.” The addition of that 1 point bumped Sanchez-Hernandez
from criminal history category III to category IV.
      At sentencing on February 21, 2018, the court began by asking Sanchez-
Hernandez if he had been given “a chance to review [the PSR] with [his]
lawyer.” Sanchez-Hernandez agreed he had. And he had just one correction:
He had been arrested by local police officers, not federal Customs and Border
Patrol officers, as the PSR indicated. But that was all:
      THE COURT: Was everything else correct?
      DEFENDANT SANCHEZ-HERNANDEZ: Yes. Yes, sir.
      Sanchez-Hernandez’s counsel argued the prior convictions were
“remote,” were not “assaultive,” and overrepresented his criminal history. He
therefore asked for a downward departure or a sentence at the low end of the
37-to-46-month range. The government disagreed. It pressed the seriousness
of the prior sex offenses and the quickness of Sanchez-Hernandez’s illegal
reentry after his 2017 release. Accordingly, it asked for an upward variance to
a range of 57 to 71 months. Sanchez-Hernandez added little in his allocution.
He admitted, “truly, I don’t regret this. In a sense, I don’t regret it because I
came to help my family.” (He told the probation office his son has “unspecified
problems with his feet,” and his son’s mother had been diagnosed with cancer.
When the probation office asked for his family’s contact information to confirm
these facts, Sanchez-Hernandez refused to provide it.)
      The court adopted the PSR’s findings but concluded a criminal history
category of V (with a range of 46 to 57 months) more accurately reflected the
likelihood of Sanchez-Hernandez’s recidivism.        The court noted it had
previously sentenced Sanchez-Hernandez to 41 months for illegal reentry, only
for Sanchez-Hernandez to “return[ ] within about six months of having been
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released from that sentence for this identical crime.” “I believe he merits
graduated punishment,” the court said, “but it’s for his recidivism that he
merits additional time in jail.” So, it sentenced Sanchez-Hernandez to 48
months.    Defense counsel objected that the sentence was substantively
unreasonable. Sanchez-Hernandez appealed.
                                      II.
      In this appeal, Sanchez-Hernandez argues for the first time that the
district court erred by treating his Texas convictions as crimes of violence and
assigning 1 criminal history point under § 4A1.1(e). That additional point put
him in category IV rather than category III and increased his Guidelines range
from 30–37 months to 37–46 months. Everyone agrees plain-error review
applies.
      Rule 52 provides that “[a] plain error that affects substantial rights may
be considered even though it was not brought to the court’s attention.” FED. R.
CRIM. P. 52(b). The Supreme Court has read this language to require a four-
part showing: The defendant must show (1) that the district court committed
an error (2) that is plain and (3) affects his substantial rights and (4) that
failure to correct the error would “seriously affect the fairness, integrity or
public reputation of judicial proceedings.” Johnson v. United States, 520 U.S.
461, 466–67 (1997) (alteration and quotation omitted). Only then may we
correct a forfeited error.
      As a threshold matter, the government concedes the first two prongs.
But the government cannot waive the proper interpretation of Rule 52. See
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); EEOC v. Fed. Labor




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Relations Auth., 476 U.S. 19, 23 (1986) (per curiam). And it is unclear whether
the district court committed any “error,” let alone a plain one. 2
       Regardless, Sanchez-Hernandez fails on the third prong of the plain-
error standard. Prong three requires Sanchez-Hernandez to prove the error
“affected [his] substantial rights, which in the ordinary case means he . . . must
show a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016) (citation and quotation omitted). In Molina-Martinez,
the district court stated it was adopting the PSR’s recommendations, sentenced
the defendant at the low end of the (incorrect) Guidelines range, and “provided
no further explanation for the sentence.” Id. at 1344. Because the district
court “said nothing specific about why it chose the sentence” besides merely
adopting the recommended range, “the Guidelines served as the starting point
for the sentencing and were the focal point for the proceedings that followed.”
Id. at 1347.      In that scenario, the Court held, it was unfair to require
“additional evidence” that the district court might have imposed a different
sentence under the correct Guidelines range. Id. at 1347–48 (“The decision
today simply states that courts reviewing sentencing errors cannot apply a
categorical rule requiring additional evidence. . . .”).
       True, Molina-Martinez predicted erroneous Guidelines ranges will
normally suffice to satisfy the third prong. But the Court recognized that won’t
always be the case. Id. at 1346–47; see Griffith v. United States, 871 F.3d 1321,



       2  Plain-error review is available only for forfeitures—not waivers. Intentionally
relinquishing a right (waiver) “extinguish[es] an ‘error’ under Rule 52(b).” United States v.
Olano, 507 U.S. 725, 733 (1993). Here, it’s possible Sanchez-Hernandez relinquished his
right. The district court asked if “everything else [in the PSR was] correct.” Sanchez-
Hernandez said “Yes.” But the record does not reveal which right Sanchez-Hernandez
intended to waive by saying “Yes.” And when it comes to waivers, such ambiguities are
insufficient to extinguish an error. See id. at 733–34. That’s why we’re not holding he waived
the error at issue here.
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1338 (11th Cir. 2017) (Molina-Martinez’s “prediction [of what will normally
suffice] is not, however, a presumption.”). In some cases, like this one, the
district court might offer “a detailed explanation of the reasons the selected
sentence is appropriate.” Molina-Martinez, 136 S. Ct at 1346–47. When it
does so, the question remains: What was driving this judge’s decision to impose
this sentence for this defendant? In answering that question, we apply no
presumptions or categorical rules.        Instead, we “consider the facts and
circumstances of the case before” us. Id. at 1346.
      Those facts and circumstances prove there is no reasonable probability
of prejudice. At the outset, the district court made crystal clear what was
driving its sentencing decision: “I believe he merits graduated punishment,
but it’s for his recidivism that he merits additional time in jail.” (emphasis
added). The court then accepted the PSR’s findings, but it concluded category
IV “substantially under-represents the likelihood of recidivism given [Sanchez-
Hernandez] had just received a 41-month sentence.” That was insufficient, the
district court concluded, because Sanchez-Hernandez turned around and
reentered again. So the court assigned Sanchez-Hernandez to category V, with
a range of 46 to 57 months. But it never once discussed the (erroneous) range
under category IV. Instead, it constantly juxtaposed its chosen sentence—48
months—with the apparently insufficient prior sentence of 41 months. The
judge did not “use[ ] the sentencing range as the beginning point to explain the
decision to deviate from it.” Peugh v. United States, 569 U.S. 530, 542 (2013)
(quotation omitted). So, “the Guidelines are [not] in a real sense the basis for
the sentence.” Ibid. (emphasis and quotation omitted).
      If the range had been 30–37 months rather than 37–46 months, it’s
unlikely anything would have changed. The district court would have treated
category III (with its 37-month ceiling) as plainly insufficient based on its belief
that the earlier 41-month sentence failed to deter Sanchez-Hernandez. And
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the court in fact believed category IV was insufficient because the defendant
quickly reentered the United States after his most recent illegal reentry
conviction. Nothing about the classification of his sex offenses alters that focus
on Sanchez-Hernandez’s contumacy.                 In fact, the court never cited those
convictions in explaining its chosen sentence—even though counsel had raised
arguments about them earlier. In this particular case, the district court’s
explanation “make[s] it clear that the judge based the sentence . . . on factors
independent of the Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. 3
       AFFIRMED.




       3 Sanchez-Hernandez also argues “[t]he equities in this case . . . warrant correction of
the error.” Appellant’s Br. 28. In his opening brief, Sanchez-Hernandez relies on “the
equities” under prong four of the plain-error standard, see ibid., but in his reply brief he
discusses “the equities” under prong three, see Reply Br. 5. It is unclear the equities
command relief for recidivist re-entry by a man with multiple convictions for sexually abusing
a child. But it doesn’t matter. Under prong three, it remains the defendant’s burden (not
the government’s) to prove prejudice. See Molina-Martinez, 136 S. Ct. at 1348 (discussing
Rule 52(b)). Sanchez-Hernandez cannot carry that burden here, regardless of the equities,
given the district court’s reasons for its sentence.
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