     Case: 15-41693      Document: 00513428417         Page: 1    Date Filed: 03/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                  ___________________                      United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                     No. 15-41693                           March 17, 2016
                                  ___________________
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


              Plaintiff - Appellee

v.

RUFINO LOREDO-MENDEZ,

              Defendant - Appellant

                               _______________________

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:14-CR-1050
                             _______________________

Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

       Rufino Loredo-Mendez moves this court (1) to vacate the sentence
imposed in this case and remand for resentencing, and (2) to issue the mandate
forthwith. The United States agrees that it is appropriate for this court to
vacate Mr. Loredo-Mendez’s sentence and remand for resentencing, and does




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41693      Document: 00513428417       Page: 2    Date Filed: 03/17/2016


                                    No. 15-41693

not oppose the motion to issue mandate forthwith. For the following reasons,
we grant both motions.
      Loredo-Mendez was convicted and sentenced for being found unlawfully
present in the United States after deportation, in violation of 8 U.S.C. § 1326.
At sentencing, he received an 8-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(B) on the basis of a 2000 North Carolina conviction for possession
with intent to manufacture, sell, and deliver marijuana, which the district
court counted as a “a conviction for a felony drug trafficking offense for which
the sentence imposed was 13 months or less” and for which Loredo-Mendez did
not receive criminal history points.
      In his motion, Loredo-Mendez argues that, under the Fourth Circuit’s
decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc),
Loredo-Mendez’s 2000 conviction did not support the enhancement because it
was not punishable by imprisonment for a term exceeding a year and thus was
not a “felony.” See U.S.S.G. § 2L1.2 cmt. n.2 (defining “felony” for purposes of
U.S.S.G. § 2L1.2(b)(1)(B) as an offense “punishable by imprisonment for a term
exceeding one year”). At sentencing, Loredo-Mendez did not object to the
enhancement. Thus, we review the issue for plain error. See United States v.
Scher, 601 F.3d 408, 411 (5th Cir. 2010). On plain-error review, we will reverse
only if “(1) there is an error, (2) that is clear or obvious, and (3) that affects [the
defendant's] substantial rights.” United States v. Ferguson, 211 F.3d 878, 886
(5th Cir. 2000). Even if these conditions are met, the decision whether to
correct a forfeited error remains soundly within our discretion; and we exercise
that discretion only if an error “seriously affect[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
735-36 (1993). Here, Loredo-Mendez’s North Carolina conviction was
punishable by not more than 8 months. See Simmons, 649 F.3d at 240; N.C.


                                          2
    Case: 15-41693     Document: 00513428417     Page: 3   Date Filed: 03/17/2016


                                  No. 15-41693

Gen. Stat. § 15A-1340.17(c), (d). Thus, it was not a felony for the purposes of
U.S.S.G. § 2L1.2(b)(1)(B). See United States v. Zacarias-Lopez, 583 F. App'x
354 (5th Cir. 2014).
      We further conclude that the plain error identified and acknowledged by
the parties affected Loredo-Mendez’s substantial rights and the fairness,
integrity, and reputation of the judicial proceedings. See United States v.
Alarcon, 261 F.3d 416, 423-24 (5th Cir. 2001); Zacarias-Lopez, 583 F. App'x
354. But for the error in applying the 8-level enhancement, Loredo-Mendez’s
sentencing range would have been 10 to 16 months, which is lower than the
20-month sentence he received. “Generally, when a trial court incorrectly
applies the United States Sentencing Guidelines, as it did here,” a defendant’s
substantial rights are affected, and “the fairness, integrity, or public
reputation of judicial proceedings is seriously affected.” Id. Thus, we will
exercise our discretion to correct the error.
      Loredo-Mendez also moves this court to issue its mandate forthwith,
because his projected release date is April 19, 2016. The government is likewise
unopposed to that motion.
      Accordingly, IT IS ORDERED that appellant’s unopposed motion to
vacate the district court’s judgment and remand case for resentencing is
GRANTED. IT IS FURTHER ORDERED that appellant’s unopposed motion
to issue the mandate forthwith is GRANTED.




                                        3
