     Case: 12-41159       Document: 00512366822         Page: 1     Date Filed: 09/09/2013




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

                                                                            FILED
                                                                        September 9, 2013

                                       No. 12-41159                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MARIO MARTINEZ-CRUZ,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-400-1


Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In April 2012, federal agents found Mario Martinez-Cruz (“Martinez”)
unlawfully present in the United States. He was charged with one count of
illegal reentry following deportation after conviction of a felony, a violation of 8
U.S.C. §§ 1326(a), (b)(1), to which he pled guilty without a written plea
agreement. Adopting the Pre-Sentence Investigation Report’s (“PSR”) factual
findings and recommendations, the district court sentenced Martinez to 30-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41159

months imprisonment, the top-end of the 24 to 30 months advisory guidelines
range.
      On appeal, Martinez raises a single issue: whether the district court
plainly erred in determining his criminal history category—and as a result
miscalculated his advisory guidelines range—because the court added a criminal
history point due to his 2008 Texas misdemeanor conviction of interference with
public duties. Holding that Martinez has met the exacting plain error standard,
we REVERSE and REMAND for the district court to re-sentence Martinez in the
light of the accurate advisory guidelines range.
                                       I.
      On April 12, 2012, Martinez was found near Brownsville, Texas by
Customs and Border Protection agents. Martinez admitted that he had no
documentation permitting him to be in the United States. Indeed, he previously
had been deported to Mexico on December 9, 2009, following his conviction for
possession with intent to distribute cocaine (the “cocaine conviction”). When
Martinez was discovered in the United States in April 2012, he had not obtained
permission from the United States to reapply for admission. On June 26, 2012,
Martinez pled guilty to the single-count indictment.
      Under the 2011 Sentencing Guidelines, Martinez’s base offense level was
determined to be eight. His base offense level then was increased by an
additional eight levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B) because of the
cocaine conviction, for which he was sentenced to seven years of deferred
adjudication probation. After applying a three-level reduction because Martinez
accepted responsibility, his total offense level was 13. The PSR also found that
Martinez had accrued seven criminal history points: (1) one point for his 2008
conviction of interfering with the duties of a public servant (a Texas
misdemeanor offense); (2) one point for the cocaine conviction; (3) three points
for his 2010 conviction of attempted illegal reentry; and (4) two points because

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he was on probation for the cocaine conviction when he committed the instant
offense. Martinez’s criminal history category thus was IV. Combining his
criminal history category with his total offense level, Martinez’s advisory
guidelines range was 24 to 30 months.                The statutory maximum term of
imprisonment was ten years.
      Although Martinez raised a number of objections at the sentencing
hearing, the district court adopted the PSR in its entirety. The court also denied
Martinez’s request for a downward departure or variance, subsequently
sentencing Martinez to 30-months imprisonment followed by a three-year term
of supervised release.1 Martinez timely appealed.
                                              II.
      Martinez contends that the district court erred by including an additional
criminal history point in its calculation of his criminal history category based on
his 2008 Texas misdemeanor conviction for interfering with the duties of a public
official. Martinez acknowledges, however, that he did not raise this objection
before the district court. Our review thus is for plain error. United States v.
Mudekunye, 646 F.3d 281, 287 (5th Cir. 2011). “For reversible plain error,
defendant must show a clear or obvious error that affects his substantial rights.”
Id.; see also United States v. Castillo-Estevez, 597 F.3d 238, 240 (5th Cir. 2010)
(“[Defendant] must show (1) error (2) that is plain and (3) that affects his
substantial rights.”). We “will correct plain errors only if they seriously affect


      1
       In requesting a 30-month sentence, the government stated:
      This defendant ought to be getting a 16-level enhancement instead of an eight,
      Your Honor. I mean, he’s been on deferred for delivering cocaine. He’s
      committed and been convicted of offenses since he was placed on deferred
      adjudication, and the deferred adjudication was never adjudicated. So he’s --
      he had a -- I believe a 1326 conviction while on deferred adjudication. He had
      other arrests for being in the country illegally while he was on probation. He
      was encountered on April the 6th of 2012, and he remains on this deferred, so
      he only gets a plus eight instead of the plus 16 or at least a plus 12 if he was to
      serve even a day for that offense, so we’re asking for 30 months.

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the fairness, integrity, or public reputation of judicial proceedings.” Castillo-
Estevez, 597 F.3d at 240.
                                        A.
      In this case, the government expressly concedes that assessing Martinez
a criminal history point because of his 2008 Texas misdemeanor conviction was
an “error,” and the error was “plain.” Although we are not bound by the
government’s confession of error, our independent review of the relevant
Sentencing Guidelines provision demonstrates that the district court committed
a clear and obvious error. See Every v. Blackburn, 781 F.2d 1138, 1140-41 (5th
Cir. 1986).
      In calculating criminal history, sentences for misdemeanor offenses are
counted unless excluded under U.S.S.G. § 4A1.2(c). Offenses listed under section
4A1.2(c)(1)—including “offenses similar to them, by whatever name they are
known”—are excluded from the criminal history calculation unless: “(A) the
sentence was a term of probation of more than one year or a term of
imprisonment of at least thirty days, or (B) the prior offense was similar to an
instant offense.” § 4A1.2(c)(1). Relevant here is the listed offense of “[h]indering
or failure to obey a police officer.” Id. To determine whether the Texas offense
for “interference with public duties” is similar to the listed offense, we apply “a
common sense approach which relies on all possible factors of similarity.”
United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 1991); see also § 4A1.2,
comment., app. n.12(A) (listing factors courts should consider).
      In Texas, the “interference with public duties” offense is a Class B
misdemeanor punishable by a fine not to exceed $2,000, jail confinement for up
to 180 days, or both. TEX. PENAL CODE §§ 38.15(a)(1), (b); see also TEX . PENAL
CODE § 12.22. “A person commits [the offense] if the person with criminal
negligence interrupts, disrupts, impedes, or otherwise interferes with: (a) a
peace officer while the peace officer is performing a duty or exercising authority

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imposed or granted by law.” § 38.15(a)(1). Based on the plain language of the
statute, Martinez’s conviction for interfering with the duties of a public servant
is essentially identical to the listed offense of hindering or failing to obey a police
officer. Furthermore, he was sentenced to only three days in prison as a result
of his actions. As such, the 2008 Texas conviction counts for criminal history
purposes only if it is similar to the instant offense. See § 4A1.2(c)(1).
      The government states that it would be “hard pressed to argue that”
interfering with a public servant is similar to the instant offense of illegal
reentry. We agree that the offenses clearly are not similar for purposes of
section 4A1.2(c)(1). The 2008 Texas misdemeanor conviction should not have
been included in calculating Martinez’s criminal history category. Martinez
therefore has satisfied the first part of the plain error test; the district court
committed an error that was clear or obvious. See United States v. Blocker, 612
F.3d 413, 416 (5th Cir. 2010) (stating that because our conclusion was reached
through a straightforward application of the Guidelines, error was obvious).
                                          B.
      We next must determine whether the additional criminal history point
affected Martinez’s substantial rights. “In cases of miscalculated guidelines
ranges, this requires demonstrating a ‘reasonable probability that, but for the
district court’s misapplication of the Guidelines, [the defendant] would have
received a lesser sentence.’” Blocker, 612 F.3d at 416. “[A] defendant has shown
a reasonable probability that he would have received a lesser sentence 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.” Mudekunye, 646 F.3d
at 290.
      Martinez relies on our prior decisions in Mudekunye and United States v.
Avalos-Martinez, 700 F.3d 138 (5th Cir. 2012), in arguing that the additional

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criminal history point affected his substantial rights. In Mudekunye, the district
court adopted an advisory guidelines range of 78 to 97 months in prison,
ultimately imposing a 97-month sentence. 646 F.3d at 285, 289. At sentencing,
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). We, however,
concluded that the correct advisory guidelines range was 63 to 78 months. Id.
at 289. As a result, we held that in cases where the correct and incorrect ranges
overlap, but the court imposes a sentence significantly above the top end of the
correct Guidelines range, the imposed sentence affects the defendant’s
substantial rights “where it is not apparent from the record that [the defendant]
would have received an above-Guidelines sentence.” Id. at 290 (quoting United
States v. John, 597 F.3d 263, 285 (5th Cir. 2010)) (alteration in original)
(internal quotation marks omitted).
      Furthermore, in Avalos-Martinez, the district court adopted an advisory
guidelines range of 70 to 87 months in prison and imposed a 72-month sentence.
700 F.3d at 153. Moreover, the court “stated that it did not intend to impose a
sentence above the applicable guidelines range.” Id. On appeal, we determined
that the correct advisory guidelines range was 57 to 71 months in prison and
concluded that, “Based on the district court’s expressed intention and the fact
that [the defendant’s] sentence exceeded the correct advisory guidelines range,
the district court’s error affected his substantial rights.” Id. at 153-54.
      The instant case fits squarely within our prior decisions in Mudekunye and
Avalos-Martinez. Here, the additional criminal history point caused Martinez’s
criminal history category to be IV instead of III; making the applicable
guidelines range 24 to 30 months instead of the correct 18 to 24 months.
Furthermore, the district court sentenced Martinez to 30-months imprisonment,
a sentence outside of the accurate Guidelines range by six months. And, as the

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government acknowledges, it is unclear whether the district court would have
entered a 30-month sentence regardless of the advisory guidelines range.
Because “it is not apparent from the record that” the district court would have
imposed an above-Guidelines sentence, we conclude that the additional criminal
history point affected Martinez’s substantial rights. See Mudekunye, 646 F.3d
at 290.
                                          C.
      Martinez has shown that the district court’s plain error in including the
additional criminal history point affected his substantial rights, but we will
exercise our discretion to correct the error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Castillo-Estevez,
597 F.3d at 240. This inquiry ultimately “is dependent upon the degree of error
and the particular facts of the case.” United States v. Hernandez, 690 F.3d 613,
622 (5th Cir. 2012) (citation omitted).
      The government argues that this court should not exercise its discretion
because the difference between the top end of the correct Guidelines range and
Martinez’s sentence is only six months, and because Martinez “should have
gotten” a 12-level enhancement, instead of an eight-level enhancement, pursuant
to section 2L1.2(b)(1). Indeed, our published decisions finding plain error in this
context generally involved significantly larger variances than six months. See
Mudekunye, 646 F.3d at 290 (19-month difference); United States v. John, 597
F.3d 263, 285 (5th Cir. 2010) (21-month difference); see also Avalos-Martinez,
700 F.3d at 154 (denying relief under the fourth prong when the difference was
only one month).      And, with respect to the 12-level enhancement, the
government states that if Texas had adjudicated Martinez’s cocaine
conviction—according to the government, the instant offense violated his
probation and should have triggered the deferred adjudication—before he was



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                                  No. 12-41159

sentenced in this case, Martinez would have received at least a 12-level increase
in his base offense level.
      Martinez’s argument, however, is equally well-supported by our caselaw.
For example, in Hernandez we exercised our discretion to correct a sentencing
error when confronted with a 12-month difference between the top end of the
accurate Guidelines range and the defendant’s sentence. 690 F.3d at 621-22.
And, like Hernandez, “the district court’s error [in the instant case] was
particularly obvious, involving a straightforward misapplication of the plain
language of the Guidelines.” Id. at 622. Moreover, the Hernandez defendant’s
criminal record contained significantly more aggravating factors than are
presented in the instant case; the Hernandez defendant was found guilty of a
“cocaine conspiracy offense,” and his sentence was increased based on the
possession of three firearms at the time of the offense—a handgun and “two
AK–47 style rifles.” Id. at 618 (internal quotation marks omitted).
      Although the instant case falls directly in between our precedent in
Avalos-Martinez—denying       relief   when   confronted   with    a   one-month
difference—and Hernandez—granting relief based on a 12-month discrepancy,
we believe that the facts of this case are more closely aligned with Hernandez.
Our failure to correct this sentencing error in the light of the six-month
difference between Martinez’s sentence and the top end of the accurate
Guidelines range, and the district court’s clear misapplication of the Guidelines,
would seriously affect the integrity of the judicial process. On remand, the
district court should re-sentence Martinez with reference to the proper advisory
guidelines range.
                                       III.
      For the reasons stated above, the judgment of the district court is
                                                 REVERSED and REMANDED.



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