     Case: 13-40602      Document: 00512525199         Page: 1    Date Filed: 02/06/2014




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

                                                                               FILED
                                    No. 13-40602                        February 6, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARMANDO ARELLANO-VELASQUEZ, also known as Cijifrido Velasquez
Arellano,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1751-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Armando Arellano-Velasquez (Arellano) appeals the 57-month sentence
of imprisonment imposed on his guilty plea conviction for illegal reentry into
the United States following removal. See 8 U.S.C. § 1326. He maintains that
the district court misapplied U.S.S.G. § 2L1.2(b)(1) when it enhanced his base
offense level by 16 levels.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40602

      Because Arellano forfeited this claim of error by not urging it in the
district court, we review for plain error. See United States v. Mondragon-
Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To succeed on plain error review,
Arellano must show (1) a forfeited error (2) that is clear or obvious and (3) that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). On such a showing, we may exercise our discretion “to remedy the
error . . . if the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks, bracketing, and citation
omitted).
      A Georgia state court convicted Arellano in March 2011 for possessing
cocaine with intent to distribute.         He was sentenced to five years of
imprisonment, with one year to be served in custody and four years on
probation. Arellano was removed to Mexico in November 2011, but he crossed
the border from Mexico into the United States on September 23, 2012, without
permission from the Attorney General. Georgia revoked Arellano’s probation
in October 2012 and imposed a 180-day prison term. The district court adopted
the presentence report, which reasoned that Arellano’s Georgia sentence
exceeded 13 months and consequently that the 16-level enhancement under
§ 2L1.2(b)(1)(A)(i) was in order, given that Arellano received criminal history
points for the offense.
      Because no violation of the Ex Post Facto Clause resulted, the district
court was correct to apply the 2012 version of the Sentencing Guidelines
manual. See United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir.
2007).      However, the district court misinterpreted that version, which
contained a change made by Amendment 764 that clarified how the length of
a prior drug trafficking sentence is to be calculated for § 2L1.2(b)(1)
enhancement purposes.           See United States Sentencing Commission,



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                                 No. 13-40602

Guidelines Manual, Supp. to Appendix C, Amendment 764, pp. 11-12 (Nov. 1,
2012).   Under the amendment, “the term of imprisonment imposed upon
revocation [of a term of probation] counts toward the calculation of the offense
level in § 2L1.2 only if it was imposed before the defendant was deported or
unlawfully remained in the United States.” Amendment 764, comment.; see
§ 2L1.2 comment. (n.1(B)(vii)) (effective November 1, 2012).
      The 180-day addition to the Georgia prison sentence did not occur until
probation was revoked in October 2012, after Arellano’s 2011 removal.
Therefore, under the 2012 version of the Guidelines, the term of imprisonment
imposed upon that revocation was not includable when calculating Arellano’s
sentence for the 2011 Georgia offense used for enhancing the sentence in the
instant case. See § 2L1.2 comment. (n.1(B)(vii)). Consequently, the district
court committed plain error when it misinterpreted the Guideline and
enhanced Arellano’s base offense level by 16 levels under § 2L1.2(b)(1)(A)(i)
rather than by 12 levels under § 2L1.2(b)(1)(B). See Puckett, 556 U.S. at 135;
see also United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008).
      But for that error, Arellano’s offense level would have been 17 and the
sentencing guidelines range would have been 37 to 46 months, significantly
lower than the 57-month sentence imposed.        The error therefore affected
Arellano’s substantial rights. See Puckett, 556 U.S. at 135; United States v.
Gonzales, 484 F.3d 712, 716 (5th Cir. 2007). Given that the district court’s
error affected his sentence, Arellano has shown that the error “seriously
affected the fairness, integrity, or public reputation of judicial proceedings.”
Gonzales, 484 F.3d at 716.
      SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.




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