     Case: 10-10357     Document: 00511793711         Page: 1     Date Filed: 03/20/2012




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

                                                                            FILED
                                                                          March 20, 2012

                                       No. 10-10357                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MIGUEL ANGEL ALEGRIA-ALVAREZ,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                  6:09-CR-42-1


Before BENAVIDES, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
        Miguel Angel Alegria-Alvarez (“Alegria-Alvarez”) pleaded guilty to one
count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326 and 6
U.S.C. §§ 202(3) & (4). At sentencing, the district court adopted the pre-sentence
report (“PSR”) without objection from either party, and sentenced Alegria-
Alvarez to seventy-one months imprisonment. Alegria-Alvarez now appeals his
sentence based on an incorrect calculation of the advisory Guideline range.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-10357

                    FACTS AND PROCEDURAL HISTORY
      On September 22, 2009, Alegria-Alvarez was indicted on one count of
illegal re-entry after deportation, in violation of 8 U.S.C. § 1326 and 6 U.S.C. §§
202(3) & (4). Subsequently, Alegria-Alvarez pleaded guilty and a pre-sentence
investigation was ordered.
      At sentencing, Alegria-Alvarez was assigned a total offense level of
twenty-one. Alegria-Alvarez received a total criminal history score of eight,
which resulted in a criminal history category IV. Based on these calculations,
Alegria-Alvarez's advisory Guideline range of imprisonment was fifty-seven to
seventy-one months. Neither the Government nor Alegria-Alvarez objected to
the PSR’s calculation of the advisory Guideline range.
      Thereafter, the district court adopted the PSR's findings and conclusions,
and sentenced Alegria-Alvarez to seventy-one months imprisonment. After
imposing the seventy-one month sentence, the district court judge stated, "I
believe this sentence does adequately address the sentencing objectives of
punishment and deterrence, as well as meeting those other factors as set forth
in Title 18, United States Code, Section 3553(a)." Aggrieved by the district
court's sentence, Alegria-Alvarez appealed.
                           STANDARD OF REVIEW
      Where the defendant fails to object to the PSR's advisory Guideline range,
we review for plain error. See United States v. John, 597 F.3d 263, 282 (5th Cir.
2010). To establish reversible plain error, the defendant must show an error
that is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If the defendant can make this showing,
"this court has discretion to correct that error, and generally will do so only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings." United States v. Mudekunye, 646 F.3d 281, 287 (5th Cir. 2011)
(citing Puckett, 129 S. Ct. at 1429).

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                                  No. 10-10357

                                 DISCUSSION
      On appeal, Alegria-Alvarez contends that the district court committed
reversible plain error by adopting the PSR because it incorrectly calculated his
total criminal history score by treating his prior convictions as separate offenses.
The Government argues that, although it was obvious error, the error did not
affect Alegria-Alvarez’s substantial rights because the district court made clear
that the sentence was based upon the factors set forth in § 3553(a), and not the
Guidelines range. Because the Government concedes that the error was obvious,
we need not address this issue here. See United States v. Blocker, 612 F.3d 413,
416 (5th Cir. 2010), cert. denied, 131 S. Ct. 623 (2010); see also United States v.
Masters, 392 F. App'x 329, 332 (5th Cir. 2010).
      In determining whether a sentencing error affects the defendant's
substantial rights, the defendant bears the burden of showing "a reasonable
probability that, but for the district court's misapplication of the Guidelines, he
would have received a lesser sentence." Blocker, 612 F.3d at 416-17 (quoting
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)). Absent additional
evidence, a defendant satisfies this burden where "(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." Mudekunye, 646 F.3d at 289. However,
when the correct and incorrect Guideline ranges overlap and the defendant is
sentenced within the overlap, this court “does not assume, in the absence of
additional evidence, that the sentence affects a defendant’s substantial rights.”
Blocker, 612 F.3d at 416.
      This case does not fall within either line of precedent. The correct and
incorrect Guideline ranges overlap by one month, but Alegria-Alvarez was
sentenced outside the overlap, 14 months above the correct Guideline range. A
criminal history score of five, rather than eight, results in a criminal history

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                                  No. 10-10357

category III. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. With a total offense
level of twenty-one and a criminal history category III, Alegria-Alvarez's correct
advisory Guideline range would have been forty-six to fifty-seven months. See
U.S.S.G. Ch. 5, Pt. A, Sentencing Table.
      Alegria-Alvarez contends that the factual scenario of Mudekunye is very
similar to his case, and that it supports a finding that the district court's error
affected his substantial rights. In Mudekunye, the district court calculated the
advisory Guidelines range, including an erroneous enhancement, to be
seventy-eight to ninety-seven months of imprisonment. Id. The district court
then sentenced Mudekunye at the top of that range to ninety-seven months. Id.
at 285. Absent the erroneous enhancement, the correct Guideline range would
have been sixty-three to seventy-eight months.         Id. at 289.   In imposing
Mudekunye's sentence, the district court stated only that the "sentence happens
to be within the Guideline range" and "is the appropriate sentence in this case
given all of the facts and circumstances."       Id. at 290 (internal quotations
omitted).
      On appeal, we found the district court's comments to be "vague and
ambiguous." Id. Moreover, we concluded that the nineteen-month disparity
between the top of the correct range and the sentence imposed was "significant."
Id. at 291. In light of the disparity between Mudekunye's sentence and the top
of the correct Guidelines range, as well as "the absence of any evidence
suggesting that the court would have sentenced Mudekunye to ninety-seven
months' imprisonment irrespective of the correct Guidelines range," we
concluded, “Mudekunye has shown a reasonable probability of a lesser sentence
and therefore, demonstrated that the court's clear error affected his substantial
rights." Id.
      Like Mudekunye, there is no evidence indicating that the district court
would have sentenced Alegria-Alvarez to seventy-one months of imprisonment

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                                       No. 10-10357

if it had used the correct Guideline range. Alegria-Alvarez’s sentence was also
at the top of the erroneous Guidelines range upon which the district court relied.
Despite that fact, the court stated only, "I've imposed a term of 71 months. I
believe this sentence does adequately address the sentencing objectives of
punishment and deterrence, as well as meeting those other factors as set forth
in Title 18, United States Code, Section 3553(a)." This is not enough to suggest
that the district court would have sentenced Alegria-Alvarez to seventy-one
months' imprisonment irrespective of the correct Guidelines range. Thus, the
district court's statements are ambiguous, and the disparity between the top of
the correct range and Alegria-Alvarez’s sentence is significant.
       Moreover, we stated that where the correct and incorrect ranges
overlapped by only one month, the defendant was sentenced outside the overlap,
and "where it is not apparent from the record that the defendant would have
received an above-Guidelines sentence, the imposed sentence affects the
defendant's substantial rights."1 Id. (internal quotations and citation omitted);
see also United States v. Severin, 221 F. App'x 299, 303 (5th Cir. 2006) (holding,
without discussion, that a disparity of only three months between the top of the
correct Guidelines range and the sentence imposed affected the defendant's
substantial rights).




       1
          It should be noted that Mudekunye relied on an unpublished case as persuasive
authority to support its decision, United States v. Carrizales-Jaramillo, 303 F. App'x 215, 217
(5th Cir. 2008). See 646 F.3d at 290. In Carrizales-Jaramillo, the correct Guidelines range
was twenty-four to thirty months, the incorrect Guidelines range was thirty to thirty-seven
months, and the defendant had been sentenced to thirty-one months of imprisonment. 303 F.
App'x 216-17. Reviewing for plain error, we noted that the ranges overlapped by one month
and that the sentence exceeded the top of the properly calculated range. Id. at 217. In
deciding that the error affected substantial rights and that the sentence should be vacated,
we stated that the district court "did not indicate that it would have imposed the same
sentence as an alternative sentence" and "did not express an intent to go outside of the
Guidelines range." Id.

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                                   No. 10-10357

      However, relying on United States v. Lee, 368 F. App’x 548 (5th Cir. 2010),
the Government argues that Alegria-Alvarez cannot establish a reasonable
probability, but only a "mere possibility," that he would have received a lesser
sentence had the district court calculated the correct Guidelines range. The
Government notes that the district court did not mention the Guidelines range
in explaining the sentence, but rather indicated that it was relying on the §
3553(a) factors. Additionally, the Government contends that the discrepancy
between the incorrect and correct ranges is insufficient to undermine confidence
in the sentence.
      In Lee, however, we addressed the substantial rights prong only "[i]n the
alternative." Id. at 553. In rejecting that claim, we determined that the
discrepancy between the Guidelines ranges was insufficient to show a
probability of a lower sentence and that the district court had been "clear that
the sentence was not based on the advisory Guidelines," but rather on the §
3553(a) factors. Id. at 554 (emphasis in original).
      The record in this case, however, provides far less evidence of the district
court's intentions at sentencing.        The district court merely referenced
punishment, deterrence, and the § 3553(a) factors and did not state that the
sentence was not based on the Guidelines range. Additionally, the district
court’s reasons for sentencing Alegria-Alvarez “did not indicate that it would
have imposed the same sentence as an alternative sentence” and "did not
express   an   intent   to   go   outside    of   the   Guidelines   range.”     See
Carrizales-Jaramillo, 303 F. App'x at 217.         Therefore, the fourteen-month
disparity between Alegria-Alvarez’s sentence and the top of the correct Guideline
range affected his substantial rights.
      Nevertheless, “[e]ven where a defendant's substantial rights are violated,
our court retains discretion to correct the reversible plain error only if it
seriously affects the fairness, integrity, or public reputation of judicial

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                                  No. 10-10357

proceedings.” Mudekunye, 646 F.3d at 291 (citing Puckett, 129 S. Ct. at 1429);
see also John, 597 F.3d at 288 (holding "whether a sentencing error seriously
affects the fairness, integrity, or public reputation of judicial proceedings is
dependent upon the degree of the error and the particular facts of the case.”).
      In John, we determined that three facts supported vacating the sentence:
(1) the district court imposed the sentence without considering the correct
Guideline range, which should have been the starting point for the district court;
(2) the sentence "would not be subjected to the process otherwise applicable to
above-Guidelines sentences; and (3) that John's sentence had already been
substantially increased by the district court's use of the intended loss rather
than the actual loss. 597 F.3d at 286-287.
      Like John, the district court in this case imposed the sentence without
considering the correct Guideline range. In addition, it is not apparent from the
record that Alegria-Alvarez would have received an above-Guideline sentence
had the district court correctly calculated the Guideline range.
      Relying on United States v. Davis, 602 F.3d 643, 650 (5th Cir. 2010), the
Government contends that we should not exercise our discretion in correcting
Alegria-Alvarez's sentence.      In Davis, the district court imposed an
above-Guidelines sentence of twenty-four months of imprisonment based on the
erroneous Guidelines range of fifteen to twenty-one months, rather than the
correct Guideline range of six to twelve months. Id. at 648. In declining to
exercise our discretion, we focused on the small disparity in the correct and
incorrect Guidelines ranges, the fact that the sentence imposed was still below
the thirty-six-month statutory maximum, and the fact that Davis violated his
supervised release under circumstances that "strongly suggested that he
intended to resume the same activities for which he initially had been convicted
and imprisoned." Id. at 651. We concluded that in cases where we have



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                                 No. 10-10357

exercised our discretion, the disparity between the correct and incorrect ranges
was generally more severe than that presented here. Id.
      In this case, although the discrepancy between the incorrect and correct
Guidelines range is smaller than in Davis, as the two overlap, see U.S.S.G. Ch.5,
Pt. A, Sentencing Table, and Alegria-Alvarez's sentence is within the statutory
maximum of 20 years, Alegria-Alvarez did not violate his supervised release
under circumstances that "strongly suggested that he intended to resume the
same activities for which he initially had been convicted and imprisoned." See
Davis, 602 F.3d at 651.
      Therefore, based upon the record before us, we are compelled to exercise
our discretion in correcting Alegria-Alvarez’s sentence.
                                CONCLUSION
      Based upon the foregoing analysis, Alegria-Alvarez’s sentence is
VACATED, and the case is REMANDED for re-sentencing.




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