     Case: 17-40345      Document: 00514311591         Page: 1    Date Filed: 01/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-40345
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       January 18, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JESUS FABIAN MARTINEZ-CONTRERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-604-1


Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jesus Fabian Martinez-Contreras pled guilty to being found in the
United States following a deportation that occurred subsequent to a felony
conviction. On appeal, he challenges the district court’s assessment of the 10-
level enhancement of U.S.S.G. § 2L1.2(b)(2)(A) (2016), which was based on a
prior state felony offense. Martinez-Contreras argues that the enhancement
was erroneously applied because, before his first removal order, he received


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-40345      Document: 00514311591     Page: 2   Date Filed: 01/18/2018


                                   No. 17-40345

only a probationary term for the state felony offense and that the prison
sentence imposed upon revocation of his probation could not be used to assess
the § 2L1.2(b)(2)(A) enhancement because it was imposed after his first
removal order.
         We review the district court’s interpretation of the guidelines de novo
and its factual findings for clear error. See United States v. Fernandez, 770
F.3d 340, 342 (5th Cir. 2014). Pursuant to United States v. Franco-Galvan,
864 F.3d 338, 340-43 (5th Cir. 2017), which issued after Martinez-Contreras
was sentenced, application of the § 2L1.2(b)(2)(A) enhancement constitutes
error.
         The Government has not met its burden of showing harmless error. See
United States v. Martinez-Romero, 817 F.3d 917, 924 (5th Cir. 2016). Although
the district court was aware of both sentencing ranges, the court never
explained that it would impose the same 48-month prison term either way. See
United States v. Guzman-Rendon, 864 F.3d 409, 411 (5th Cir. 2017), cert.
denied, 2017 WL 4883172 (Dec. 4, 2017) (No. 17-6519). Rather, the court used
the incorrect range as the starting point for its discussion of the various 18
U.S.C. § 3553(a) factors warranting deviation from that range. See Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). Further, the court’s
comments at sentencing do not make clear that its sentencing decision was
based on factors independent of the Sentencing Guidelines. See United States
v. Wikkerink, 841 F.3d 327, 338 (5th Cir. 2016).
         We VACATE the judgment and REMAND to the district court for
resentencing.




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