                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-15746                ELEVENTH CIRCUIT
                                                            SEPTEMBER 28, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                  D. C. Docket No. 07-00143-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

HUGO BARRERA-CRUZ,
a.k.a. Francisco Barrera-Cornejo,

                                                            Defendant-Appellant.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                               (September 28, 2009)


Before TJOFLAT, BLACK and FAY, Circuit Judges.

PER CURIAM:
       Hugo Barrera-Cruz appeals his 30-month sentence imposed for illegal

reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). Barrera-

Cruz contends the district court plainly erred by relying on his 2001 conviction for

willful cruelty to child possibly resulting in injury or death, in violation of Cal.

Penal Code § 273a(a), to enhance his sentence eight levels based on an aggravated

felony under U.S.S.G. § 2L1.2(b)(1)(C). He asserts his conviction does not qualify

as an aggravated felony under § 2L1.2(b)(1)(C) because it was not punished by

more than one year in prison.1 He contends he satisfies the plain-error test because

he received a sentence at the bottom end of his miscalculated Guidelines range, and

there is a reasonably probability that, with a new range, he would likely receive a

lower sentence.2 We vacate and remand for resentencing.

       1
         The Government asserts two alternative reasons why we should not entertain this issue
on appeal. First, the Government contends Barrera-Cruz waived the issue before the district
court. His silence when the district court declared the crime to be a felony, however, cannot
reasonably be construed as an intentional relinquishment of the right to challenge whether it was
an aggravated felony. Thus, he merely forfeited the one-year issue by failing to raise it before
the district court. See United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (en banc)
(applying United States v. Olano, 113 S. Ct. 1770 (1993)) (“We now hold, consistent with
Olano, that a waiver is the intentional relinquishment of a known right, whereas the simple
failure to assert a right, without any affirmative steps to voluntarily waive the claim, is a
forfeiture to be reviewed under the plain error standard embodied in Rule 52(b).”). Second, the
Government contends Barrera-Cruz did not adequately raise this issue in his brief on appeal. We
conclude he adequately raised this issue in his brief on appeal, and provided citation of authority
in support of his claim. See Flanigan’s Enters., Inc. of Ga. v. Fulton County, 242 F.3d 976, 987
n.16 (11th Cir. 2001).
       2
        Barrera-Cruz further argues on appeal the crime was not categorically a crime of
violence, under 18 U.S.C. § 16, and therefore not an aggravated felony, pursuant to 8 U.S.C.
§ 1101(a)(43)(F). However, because we resolve the other issue in his favor, it is unnecessary to
consider this issue.

                                                 2
       Pursuant to U.S.S.G. § 2L1.2(b)(1)(C), a defendant receives an 8-level

enhancement if he was deported from the United States or remained unlawfully

after a conviction for an aggravated felony. An “aggravated felony” under 8

U.S.C. § 1101(a)(43)(F) includes a “crime of violence (as defined by 18 U.S.C.

§ 16, but not including a purely political offense) for which the term of

imprisonment [is] at least one year.” The one-year requirement applies to the

length of the term of the sentence imposed by the court. United States v.

Maldonado-Ramirez, 216 F.3d 940, 942 (11th Cir. 2000).

       Forfeited claims are reviewed only for plain error. United States v. Lewis,

492 F.3d 1219, 1222 (11th Cir. 2007) (en banc). To show plain error, a defendant

must demonstrate that: “(1) there is an error; (2) that is plain or obvious;

(3) affecting [his] substantial rights in that it was prejudicial and not harmless; and

(4) that seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). To

establish prejudice, an appellant must show that, viewing the proceedings in their

entirety, the error did affect the sentence and the sentence was substantially swayed

by the error. United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).

       In United States v. Bennett, 472 F.3d 825, 834 (11th Cir. 2006), we found

plain error and vacated for resentencing when the total offense level was



                                             3
miscalculated by one level. The district court in that case had expressed a desire to

sentence Bennett to the lower end of the Guidelines and because of this, there was

a reasonable probability the district court would have given him a different

sentence if the correct Guidelines range was used. Id.

      The district court committed error by enhancing Barrera-Cruz’s sentence

under § 2L1.2(b)(1)(C). The PSI states the sentence imposed in Barrera-Cruz’s

2001 California conviction was 180 days. Under 8 U.S.C. § 1101(a)(43)(F), a

conviction qualifies as an aggravated felony only if the term of imprisonment is at

least one year. Further, this error is plain, as the sentence imposed was less than

the amount required by statute.

      At sentencing, Barrera-Cruz’s final offense level was 13 and his criminal

history category was V, yielding a range of 30 to 37 months. The district court

sentenced him to the bottom of the Guidelines range, 30 months. Absent any other

changes, Barrera-Cruz would have been eligible for a four-level increase for being

deported pursuant to committing a felony rather than an eight-level increase for an

aggravated felony. See U.S.S.G. § 2L1.2(b)(1)(D). Thus, his corrected offense

level would be 9 and his criminal history category V, yielding a corrected

Guidelines range of 18 to 24 months.




                                           4
       We conclude this error in calculation was prejudicial. Similar to Bennett,

Barrera-Cruz was sentenced to the bottom of his Guidelines range. Although the

district court rejected Barrera-Cruz’s argument for a sentence between 21 and 27

months, the district court was not aware that Barrera-Cruz’s corrected Guidelines

range was even lower–18 to 24 months–and there is a reasonable probability the

miscalculation of the Guidelines substantially swayed the sentence imposed. See

Mathenia, 409 F.3d at 1292. We conclude the error was prejudicial and seriously

affected the fairness, integrity, or public reputation of the judicial proceedings.

Accordingly, we vacate Barrera-Cruz’s sentence and remand for resentencing.3

       VACATED AND REMANDED.




       3
         We do not suggest that Barrera-Cruz’s Guidelines range is 18 to 24 months’
imprisonment. We further do not suggest that the district court must impose any particular
sentence on remand or that the district court is not free to impose the same sentence. On
remand, the district court should determine what sentence is reasonable and appropriate after
considering its recalculated advisory Guidelines range and the factors set forth in 18 U.S.C.
§ 3553(a).

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