     Case: 14-51238   Document: 00513286141        Page: 1   Date Filed: 11/25/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-51238                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         November 25, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ERIC STEVEN PUTNAM,

             Defendant - Appellant




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


Before JOLLY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
      Eric Putnam appeals his 15-year term of supervised release on the
grounds that the district court erroneously treated his conviction for failure to
register as a sex offender as a “sex offense.” He also challenges the special
condition of supervised release that prohibits him from consuming alcohol. For
the reasons explained below, we VACATE the term of supervised release and
REMAND for resentencing.
                                         I.
      Putnam pleaded guilty to failure to register as a sex offender in violation
of 18 U.S.C. § 2250. That violation carries a statutory range for supervised
release of five years to life. 18 U.S.C. § 3583(k). The Presentence Investigation
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Report (PSR) calculated the Guidelines range for supervised release the same
as the statutory range by treating Putnam’s conviction as a sex offense under
section 5D1.2(b)(2) of the Guidelines. It also recommended a special condition
prohibiting him from consuming alcohol while on supervised release. The
district court adopted the PSR and sentenced Putnam to ten months in prison
followed by a supervised release term of 15 years with, among other conditions,
a condition prohibiting alcohol consumption.
                                         II.
      Because Putnam did not object to either the length of the supervised
release term or the alcohol condition in the district court, we review for plain
error. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). Putnam
therefore must show a plain error that affected his substantial rights. See
United States v. Escalante–Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).
If he can do so, we have discretion to correct the error only if it seriously affects
the fairness, integrity, or public reputation of the proceeding. See id.
      The government concedes that a plain error occurred with respect to the
Guidelines calculation for the length of Putnam’s supervised release term.
This court has held that failure to register under the Sex Offender Registration
and Notification Act does not qualify as a sex offense under section 5D1.2(b)(2)
of the Guidelines. See United States v. Segura, 747 F.3d 323, 329–31 (5th Cir.
2014). Furthermore, amendments to the Guidelines, which took effect prior to
Putnam’s      sentencing,      revised       the   commentary        accompanying
section 5D1.2(b)(2) to clarify that failure to register as a sex offender does not
constitute a sex offense. U.S. Sentencing Guidelines Manual, Supp. to App’x
C, Amend. 786, at 80–82 (U.S. Sentencing Comm’n 2014). The Guidelines




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                                        No. 14-51238
recommendation for the length of supervised release is thus just five years,
rather than the range of five years to life listed in Putnam’s PSR. 1
       Putnam has also met his burden of showing that the error affected his
substantial rights. He has demonstrated “a reasonable probability that, but
for the district court’s misapplication of the Guidelines, he would have received
a lesser sentence.” See United States v. Mudekunye, 646 F.3d 281, 289 (5th
Cir. 2011) (per curiam). Absent other evidence indicating that the Guidelines
range did not influence the sentence, a defendant meets this burden “when (1)
the district court mistakenly calculates the wrong Guidelines range, (2) the
incorrect range is significantly higher than the true Guidelines range, and (3)
the defendant is sentenced within the incorrect range.” 2 Id. Putnam’s case
meets all three requirements as the 15-year term of supervised release, which



       1  The Guidelines provide that for all offenses the term of supervised release may not
be less than the statutory minimum, and that for “sex offenses” the term may be up to life.
U.S.S.G. § 5D1.2(b)(2), (c). Thus, if failure to register were a sex offense, the Guidelines range
would be five years to life. See 18 U.S.C. § 3583(k) (setting minimum supervised release term
for a violation of section 2250 at five years).
        In contrast, when failure to register is not construed as a sex offense, the
recommended range under the Guidelines is determined by reference to the severity of the
offense. Failure to register has a ten-year maximum term of imprisonment, see 18 U.S.C.
§ 2250(a), making it a Class C felony. See 18 U.S.C. § 3559(a)(3) (classifying an offense with
a maximum imprisonment term of at least 10 years but less than 25 years as a Class C
felony). Under section 5D1.2(a)(2), the Guidelines recommend a supervised release term
lasting between one and three years for a Class C felony. But because this directly conflicts
with the statutory minimum, the statutory minimum of five years becomes the Guidelines
range under section 5D1.2(c).
        2 The Supreme Court recently granted certiorari the review this court’s standard for

 assessing the “substantial rights” requirement of plain error review. See United States v.
 Molina-Martinez, 588 Fed. App’x 333 (5th Cir. 2014), cert. granted, 84 U.S.L.W. 3163 (U.S.
 Oct. 1, 2015). But that case involves this court’s more stringent standard for demonstrating
 that an error affected the defendant’s substantial rights when the defendant was sentenced
 within the overlap between the incorrect and correct Guidelines ranges. See Appellant’s
 Petition for Writ of Cert., Molina-Martinez v. United States, No. 14-8913, 2015 WL 5766728
 (U.S. Mar. 16, 2015), available at http://www.scotusblog.com/wp-content/uploads/
 2015/10/2015_03_16_Molina-Martinez_Saul_CRTPET.pdf. That standard is not implicated
 here because Putnam was sentenced outside the correct Guidelines range and thus receives
 the benefit of the presumption.
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was within the erroneous “five years to life” range, is three times the
recommended term under the correct Guidelines calculation.
      The Government does not provide much argument that this presumption
is rebutted by evidence from the sentencing hearing, although it relies heavily
on Segura throughout its briefing. In Segura, we held that the Government
did overcome the presumption that plain error affected the defendant’s
substantial rights even though he received a lifetime term of supervised
release that greatly exceeded the Guidelines range of five years.            The
additional evidence that persuaded us that the defendant would have received
the same term under the correct Guidelines range was the district court’s
emphasis on the defendant’s extensive, three-decade long criminal history
involving sexual contact offenses as well as the fact that it did not refer to the
Guidelines during sentencing. 747 F.3d at 330–31. In contrast, Putnam has
only one prior offense, which did not involve contact, and the district court
referred to the low end of the Guidelines range for Putnam’s custodial sentence,
indicating that it was generally relying on the Guidelines at the sentencing
hearing. The record from the sentencing hearing therefore does not rebut the
presumption of prejudice that attaches to the term of supervised release that
was three times as long as the correct Guidelines range.
      That leaves the question whether the plain error affects the fairness,
integrity, and reputation of the judicial proceeding. Although this final inquiry
is far from automatic when the other requirements for correcting plain error
are met, we have often exercised our discretion to correct error when it resulted
in a custodial sentence in excess of the correct Guidelines recommendation.
See, e.g., United States v. Hernandez, 690 F.3d 613, 621–22 (5th Cir. 2012)
(exercising discretion to vacate a prison sentence 12 months above the correct
Guidelines range); Mudekunye, 646 F.3d at 290–91 (same for a 19-month
disparity); United States v. John, 597 F.3d 263, 285–86 (5th Cir. 2010) (same
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for 21-month disparity). Miscalculation of the Guideline range for a term of
supervised release is less common. But we have recognized that supervised
release terms also constitute a substantial restraint on liberty by correcting in
the plain error posture statutory errors that substantially affected this aspect
of sentencing. See, e.g., United States v. Segura, 61 F. App’x 119, at *1 (5th
Cir. 2003) (“This court will correct overlong terms of supervised release on
plain-error review.”); United States v. Cooper, 274 F.3d 230, 244 (5th Cir. 2001)
(correcting an overlong term of supervised release outside the statutory
maximum); United States v. Meshack, 225 F.3d 556, 578 (5th Cir. 2000) (the
same), amended on reh’g in part on other grounds by 244 F.3d 367 (5th Cir.
2001). We thus conclude that the error in Putnam’s case that resulted in a
supervised release term ten years above the Guidelines range satisfies all the
plain error inquiries and exercise our discretion to correct it. 3
       Because we vacate the supervised release term as a result of the error in
the Guidelines calculation of its length, we need not reach the question of
whether the special condition prohibiting alcohol consumption was also in
plain error. When imposing the new term of supervised release, the district
court may again consider the propriety of the alcohol prohibition.
       We VACATE Putnam’s sentence and REMAND for resentencing
consistent with this opinion.




       3 After it found that the erroneous Guideline calculation did not substantially affect
the defendant’s substantial rights, Segura also noted that the defendant’s “23-year criminal
history” and multiple failures to register would have led the court to not exercise its discretion
to correct the error. 747 F.3d at 331. As discussed above, the defendant in this case does not
have nearly as extensive a criminal history.
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