     Case: 18-50004      Document: 00514907148         Page: 1    Date Filed: 04/08/2019




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


                                      No. 18-50004                              FILED
                                                                             April 8, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

FRANCISCO VILLAGOMEZ, also known as Francisco Paul Villagomez, Jr.,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CR-144-1


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Francisco Villagomez pled guilty to being a felon in possession of a
firearm. He was sentenced to 120 months of imprisonment. He claims on
appeal that the district court erred in calculating his base offense level under
the Sentencing Guidelines, in failing to credit time served on undischarged
state sentences, and in failing to order that his federal sentence run concurrent
to any remaining time on undischarged state sentences. We agree with the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50004
argument about the base offense level. We VACATE and REMAND FOR
RESENTENCING.


                    FACTUAL AND PROCEDURAL HISTORY
      On November 11, 2016, officers from the Austin, Texas Police
Department Metro Tactical Unit received a crime-stoppers tip regarding
Villagomez’s location. Villagomez had outstanding warrants for, among other
offenses, evading arrest in a motor vehicle. Based on the information from the
tip, officers located Villagomez driving a pickup truck with a stolen license
plate. The officers followed Villagomez to a gas station, where he parked at a
gas pump but remained inside his truck. To prevent Villagomez from again
evading arrest, one patrol unit vehicle approached in front of Villagomez’s
truck and another parked behind. Both police vehicles had their emergency
lights activated.
      Upon seeing the officers, Villagomez backed his truck into one patrol
unit, nearly striking officers who were walking towards him. He refused to get
out of his truck and continued to use it in an effort to push the patrol unit out
of the way. The driver-side door was open on Villagomez’s truck throughout
the encounter, and officers finally were able to pull him from the truck and
handcuff him after deploying three taser cartridges. After he was restrained,
officers saw a loaded firearm in the pocket of Villagomez’s driver-side door.
During their subsequent search of the truck, officers discovered three
additional firearms.
      In April 2017, Villagomez was convicted in state court of two offenses
arising from these events: aggravated assault on a peace officer and evading
arrest with a motor vehicle. He was sentenced to two years of imprisonment.
      Villagomez also was indicted by a grand jury in the U.S. District Court
for the Western District of Texas for various offenses related to the events at
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                                 No. 18-50004
the gas station. In September 2017, Villagomez pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In calculating
Villagomez’s offense level, a presentence investigation report (“PSR”)
incorrectly determined that the November 2016 federal offense was committed
after a felony conviction for a crime of violence, namely, the April 2017 state
conviction for evading arrest. The PSR therefore applied a base offense level
of twenty.   The PSR also applied a four-point enhancement based on a
determination that “the defendant possessed the firearms in connection with
another felony offense, to wit: Aggravated Assault on a Peace Officer.”
      At sentencing, Villagomez challenged the four-point enhancement,
arguing that, although firearms were present at the time of his aggravated
assault on a peace officer, they were not actually used in connection with that
offense. The court sustained the objection, finding no “connection between that
criminal offense that he is convicted of or the factual allegations with regard
to his conduct at the time of the arrest.” As a result, Villagomez’s offense
calculation was reduced from 29 to 25, with a Guidelines range of 100 to 125
months imprisonment.
      Villagomez also requested credit for the time served between his federal
indictment in March 2017 and the date of sentencing.         That request was
denied.
      For the first time on appeal, Villagomez challenges the application of the
twenty-point base offense level, which requires that his federal offense be
committed after the date of the relevant state conviction. He also argues that
the court was required to credit Villagomez for time served or to be served on
his state offenses.




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                                   No. 18-50004
                                  DISCUSSION
      We first review Villagomez’s argument that his base offense level was
improperly calculated. Because of our resolution of that claim, we pretermit
consideration of his arguments under Guidelines Section 5G1.3(b).
      Villagomez did not object in district court to the issue he now raises
regarding his base offense level. Consequently, we review for plain error.
United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011). A defendant must
show an error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If that showing is made,
we may correct the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation omitted).
      The Guidelines provide that a base offense level of 20 applies if “the
defendant committed any part of the instant offense subsequent to sustaining
one felony conviction of either a crime of violence or a controlled substance
offense.” § 2K2.1(a)(4)(A). Previously, that section predicated the base offense
level on whether the defendant “had one prior felony conviction of either a
crime of violence or controlled substance offense.” U.S.S.G., Supp. to App. C.,
Amend. 630, at 215 (2001). There was a circuit split regarding whether an
offense committed after the commission of but before sentencing for the current
offense was counted as a prior felony conviction.         Id. at 216.    Before the
language relevant here was adopted, we had held that such an offense counted
so long as the sentence was imposed prior to sentencing for the current offense.
United States v. Gooden, 116 F.3d 721, 724-25 (5th Cir. 1997). In amending
the language of Section 2K2.1(a)(4)(A) to its present form, the Sentencing
Commission clarified the current offense had to be committed after the prior
felony conviction. U.S.S.G., Supp. to App. C., Amend. 630, at 216 (2001).
      The government argues that the date of Villagomez’s predicate offense is
a question of fact that was “capable of resolution by the district court upon
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                                  No. 18-50004
proper objection.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). If
so, the claim would not be reviewable for plain error. Id. We see no question
of fact that needed to be resolved based on conflicting evidence and only if
raised with the district court. True, this legal issue, as do most, depends on
facts for its resolution. These facts, though, are undisputed and do not require
district court findings. The record shows the date of Villagomez’s state-court
conviction and the date he committed the offense for which he was sentenced
in federal court. Because he committed his federal offense before and not after
the date of his state conviction, application of the Section 2K2.1 base offense
level was a “clear or obvious” error. Cf. United States v. Espinoza, 677 F.3d
730, 736 (5th Cir. 2012) (concluding that a different Guidelines-application
error was clear or obvious).
      A sentencing error affects a defendant’s substantial rights when there is
a reasonable probability that the defendant would have received a less severe
sentence absent the error. See United States v. Mudekunye, 646 F.3d 281, 289
(5th Cir. 2011).     A defendant need only show that the erroneous, higher
sentencing range “set the wrong framework for the sentencing proceedings.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). If a defendant
is sentenced based on an incorrect Guidelines range, “the error itself can, and
most often will, be sufficient to show” that his substantial rights were affected.
Id. Villagomez has made such a showing here. The erroneous base offense
level contributed twenty points to Villagomez’s twenty-five-point offense level.
      Because this error necessitates resentencing, we leave for the district
court to give initial consideration to Villagomez’s Section 5G1.3(b) arguments
as part of the determination of a new sentence.
      VACATED and REMANDED for RESENTENCING.




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