     Case: 16-20811      Document: 00514174564         Page: 1    Date Filed: 09/28/2017




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

                                    No. 16-20811                                 FILED
                                  Summary Calendar                       September 28, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES ANGULO QUINTERO, also known as James Qunitero Angulo, also
known as Jame Quintero Angulo, also known as Pedro Perez Martinez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-47-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       James Angulo Quintero pleaded guilty to illegal reentry after removal
and was sentenced below the Guidelines to 46 months of imprisonment. He
challenges the sentencing court’s application of a guidelines enhancement
under U.S.S.G. § 2L1.2(b)(2). At sentencing, the district court’s calculation of
the applicable guidelines range included an 8-level enhancement under



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20811

§ 2L1.2(b)(2)(B) based on the court’s determination that Quintero, prior to
being ordered removed, had “sustained a conviction for a felony offense for
which the sentence imposed was two years or more.” Specifically, Quintero
had previously pleaded guilty to the Texas state-law felony of burglary, for
which he originally received deferred adjudication probation. Prior to being
ordered removed, his deferred adjudication probation was revoked, and he was
sentenced to 5 years of imprisonment, probated 5 years, receiving 270 days of
credit for jail time. After his removal and illegal return to the United States,
Quintero’s state probation was revoked, and he was sentenced to three years
of imprisonment.
      On appeal, Quintero contends that the district court reversibly erred by
applying the challenged adjustment because, contrary to the mandate of
§ 2L1.2, his custodial sentence for the prior conviction was not imposed until
after he “was ordered deported or ordered removed from the United States for
the first time.” § 2L1.2(b)(2). Where, as here, a guidelines challenge has been
preserved, see United States v. Fernandez, 770 F.3d 340, 342, this court
“review[s] a district court’s interpretation of the guidelines de novo and its
factual determinations for clear error,” United States v. Solis-Garcia, 420 F.3d
511, 514 (5th Cir. 2005). During the pendency of this appeal, we decided
United States v. Franco-Galvan, 864 F.3d 338, 341-43 (5th Cir. 2017), in which
we held that our prior holding in United States v. Bustillos-Pena, 612 F.3d 863
(5th Cir. 2010), still governs the interpretation of the current version of
§ 2L1.2(b)(2). Pursuant to Franco-Galvan, the district court erred by applying
§ 2L1.2(b)(2)(B) to Quintero’s non-probated state sentence of three years of
imprisonment, which was issued “upon revocation post-deportation.” 864 F.3d
at 343.




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                                No. 16-20811

      The Government has not met its burden to show that the error was
harmless. Given that the Government solely argues that the district court
imposed a non-guidelines sentence based on Quintero’s “personal history and
recidivism,” and the district court never indicated that it would have imposed
the same sentence, we cannot conclude harmlessness.          United States v.
Guzman-Rendon, 864 F.3d 409, 411 (5th Cir. 2017); United States v. Sibley,
448 F.3d 754, 760 (5th Cir. 2006).
      As a final matter, both parties agree that a remand is warranted for the
purpose of correction of the judgment insofar as it conflicts with the district
court’s statement at sentencing, upon the Government’s motion, that the
special assessment was remitted. At resentencing, the district court should
address the issue.
      We VACATE the judgment and REMAND to the district court for
resentencing.




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