     Case: 08-20654     Document: 00511073347          Page: 1    Date Filed: 04/07/2010




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

                                                  FILED
                                                                             April 7, 2010
                                     No. 08-20654
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERTO ORTUNO-SANTANA, also known as Roberto Ortuno, also known as
Aristeo Reyna Villafuerte, also known as Aristeo Duque Villafuerte, also known
as Aristeo Villafuerte-Duque,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:08-CR-151-ALL


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Roberto Ortuno-Santana appeals the 37-month sentence imposed following
his guilty plea conviction for illegal reentry following deportation after having
been convicted of an aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). He argues
that the district court plainly erred in enhancing his base offense level by 12
levels under U.S.S.G. § 2L1.2(b)(1)(B) based on his 1996 Louisiana conviction for



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-20654    Document: 00511073347 Page: 2         Date Filed: 04/07/2010
                                 No. 08-20654

possession of marijuana with intent to distribute. He contends that the prior
sentence of five years of probation did not qualify as a “sentence imposed [of] 13
months or less” for purposes of the 12-level enhancement.
      As Ortuno-Santana concedes, because this issue is raised for the first time
on appeal, review is for plain error. See United States v. Rodriguez-Parra, 581
F.3d 227, 229 (5th Cir. 2009), pet. for cert. filed (Dec. 29, 2009) (No. 09-8336). To
show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States,129
S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The district court erred in increasing Ortuno-Santana’s base offense level
by 12 levels as a result of the prior conviction for which he received a sentence
of five years of probation. See Rodriguez-Parra, 581 F.3d at 229-30. The error
was clear or obvious in light of Rodriguez-Parra. See id.; see United States v.
Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008). Although Rodriguez-Parra
was decided after Ortuno-Santana was sentenced, “the error need only be plain
at the time of appellate consideration.” Gonzalez-Terrazas, 529 F.3d at 298.
Ortuno-Santana has shown a reasonable probability that, but for the
misapplication of the Guidelines, he would have received a lesser sentence and
that the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See United States v. Price, 516 F.3d 285, 289-90 & n.28 (5th
Cir. 2008); United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005).
Accordingly, we vacate sentence and remand for resentencing.
      SENTENCE VACATED; CASE REMANDED.




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