     Case: 16-40672   Document: 00514636893        Page: 1   Date Filed: 09/11/2018




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

                                    No. 16-40672                         FILED
                                                                September 11, 2018
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

JESUS ISLAS-SAUCEDO,

             Defendant - Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and WIENER and HIGGINSON, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Jesus Islas-Saucedo appeals the sentence imposed following his guilty
plea conviction for illegal reentry after having been deported. In this appeal,
he contends that the district court improperly enhanced his base offense level
by 12 levels under U.S.S.G. Manual § 2L1.2(b)(1)(A)(ii) (U.S. Sentencing
Comm’n 2015) and that this erroneously increased his U.S. Sentencing
Guidelines range. His argument is predicated on his contention that his 1990
Texas conviction for burglary of a habitation under Texas Penal Code §
30.02(a)(1) is not a crime of violence. More specifically, relying on Mathis v.
United States, 136 S. Ct. 2243, 2251 (2016), he asserts that the Texas statute
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                                       No. 16-40672
is indivisible and does not comport with the generic crime of burglary of a
habitation.
       While Islas-Saucedo’s appeal was pending, this court held in United
States v. Herrold, 883 F.3d 517, 517 (5th Cir. 2018) (en banc) that a conviction
under the same Texas burglary statute is not a violent felony under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). 1 Given the court’s
ruling in Herrold, the Government concedes that Islas-Saucedo is entitled to a
vacated sentence, though it requests that we delay ruling until the Supreme
Court has considered whether to review our decision on the Texas burglary
statute. We reject that suggestion and VACATE and REMAND for re-
sentencing.
      I.      FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       On December 28, 2015, Islas-Saucedo was charged by a one-count
indictment with being unlawfully present in the United States after
deportation subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a)
and (b)(1). On January 26, 2016, without a plea agreement, Islas-Saucedo
entered a plea of guilty to the indictment.
       Using the 2015 edition of the Sentencing Guidelines, the pre-sentence
investigation report (“PSR”) calculated the total offense level to be 17, by: (1)
starting with a base offense level of eight, pursuant to § 2L1.2(a); (2) adding 12
levels pursuant to § 2L1.2(b)(1)(A)(ii), on the ground that Islas-Saucedo’s 1990
Texas felony conviction for burglary of a habitation was a “crime of violence”



       1 The ACCA enhances the sentences of defendants with at least three previous
convictions for certain crimes. Herrold, 883 F.3d at 521. Not all convictions trigger the
enhancement—the ACCA specifies that a previous conviction must be for a “violent felony”
or a “serious drug offense” for it to count as an ACCA predicate. Id. (citing 18 U.S.C. §
924(e)(1)). “Violent felony,” the sole category under which Islas-Saucedo’s burglary
convictions could plausibly fall, is defined in part by reference to other crimes, and the ACCA
tells us that “burglary, arson, [and] extortion” fit the bill. Id. (citing 18 U.S.C. §
924(e)(2)(B)(ii)).
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that was not assessed any criminal history points; and (3) subtracting three
levels pursuant to § 3E1.1(a) and (b) for timely acceptance of responsibility. A
total offense level of 17, coupled with Islas-Saucedo’s criminal history category
of IV, resulted in a Guideline imprisonment range of 37 to 46 months. Islas-
Saucedo did not object to the PSR’s Guideline calculations.
       On May 2, 2016, the district court sentenced Islas-Saucedo to serve 42
months in the custody of the Bureau of Prisons and a three-year term of
supervised release. Islas-Saucedo timely appealed.
       On December 27, 2016, Islas-Saucedo, representing himself pro se, filed
his opening brief. For the first time on appeal, Islas-Saucedo argues that the
district court erroneously applied the 12-level crime of violence enhancement
because (1) not all of the subsections of the Texas burglary statute, TEX. PENAL
CODE § 30.02(a)(1)-(3), meet the definition of generic burglary, and (2) the
modified categorical approach may not be used to narrow his offense because,
under Mathis, 2 the Texas statute is indivisible. He argues that Mathis
effectively overruled this court’s precedent in United States v. Conde-
Castaneda, 753 F.3d 172, 175–77 (5th Cir. 2014) (holding that a Texas burglary
conviction under Texas Penal Code § 30.02(a)(1) constitutes generic burglary
and, accordingly, is a crime of violence).
       On May 4, 2017, the Government filed a motion for summary affirmance
on the ground that this court has already rejected Islas-Saucedo’s arguments
in United States v. Uribe, 838 F.3d 667, 671 (5th Cir. 2016) (holding Texas
Penal Code § 30.02(a) is divisible). This court denied the motion on September
26, 2017. However, on October 5, 2017, this court granted the Government’s




       2 In Mathis, the Supreme Court held that a prior conviction does not qualify as the
generic form of a predicate violent felony offense listed in the ACCA if an element of the crime
of conviction is broader than an element of the generic offense. 136 S. Ct. at 2251.
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motion to stay further proceedings pending a ruling on the petition for
rehearing en banc in Herrold.
       This court issued its Herrold opinion on February 20, 2018. The
Government concedes that under Herrold, the district court’s application of the
crime of violence enhancement pursuant to § 2L1.2(b)(1)(A)(ii) would be
erroneous. See Herrold, 883 F.3d at 541 (holding Texas Penal Code § 30.02(a)
is overbroad and indivisible). Nevertheless, the Government requests that this
court hold the case in abeyance pending the Supreme Court’s determination
on the petitions for a writ of certiorari filed in Herrold and Quarles. 3 See
Petition for Writ of Certiorari, Herrold, 883 F.3d 517 (No. 17-1445); see also
Petition for Writ of Certiorari, Quarles, 850 F.3d 836 (No. 17-778). To preserve
its position, the Government challenges our holding in Herrold by arguing that
Islas-Saucedo was properly subject to the ACCA enhancement under the Texas
burglary statute. The Government maintains that (1) under the categorical
approach, Texas Penal Code § 30.02(a) is a crime of violence because all of its
subsections match a generic burglary offense, and (2) alternatively, the Texas
burglary statute is divisible and, under the modified categorical approach,
Islas-Saucedo’s prior conviction is a crime of violence. 4




       3  In Quarles v. United States, another criminal defendant filed a petition for a writ of
certiorari raising a similar issue under Michigan’s burglary statute of whether a defendant’s
continued unlawful presence in a dwelling following the formation of intent to commit a crime
satisfied the basic elements of a generic “remaining in” burglary. See Petition for Writ of
Certiorari, Quarles, 850 F.3d 836 (No. 17-778). The Solicitor General has agreed with the
petitioner that the petition for a writ of certiorari should be granted and the Government
notes that the question presented concerning “remaining in” burglary would likely affect the
outcome in this case. The Government asserts that Texas Penal Code § 30.02(a) is
categorically a crime of violence because all of its subsections, including “remaining in”
burglary under subsection (a)(3), qualify as generic burglary under Taylor. 495 U.S. at 575.
        4 A writ of certiorari has been granted in two cases that address whether burglary of

a nonpermanent or mobile structure adapted for overnight use can qualify as “burglary.”
United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), cert. granted, 138 S. Ct. 1592
(2018); United States v. Sims, 854 F.3d 1037 (8th Cir. 2017), cert. granted, 138 S. Ct. 1592
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                           II.    STANDARD OF REVIEW
       This court reviews “the district court’s interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error.”
United States v. Johnson, 880 F.3d 226, 233 (5th Cir. 2018) (quoting United
States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010)). Because Islas-Saucedo
failed to object in district court, the issue of whether his prior conviction is a
crime of violence under § 2L1.2 is subject to plain error review. See United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (quoting
United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008) (per
curiam)).
       Under the plain error standard of review, Islas-Saucedo must show: (1)
an error or defect—some sort of deviation from a legal rule—that has not been
intentionally relinquished or abandoned, i.e., affirmatively waived, by him; (2)
the legal error must be clear or obvious, rather than subject to reasonable
dispute; (3) the error must have affected his substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of the
district court proceedings; and (4) if the above three prongs are satisfied, this
court has the discretion to remedy the error—discretion which ought to be
exercised only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135
(2009) (internal quotation marks and citations omitted).
                                   III.   DISCUSSION
   A. Categorical and Modified Categorical Approach
       Texas’s burglary statute is alternatively phrased, comprised of a
       list of several disjunctive subsections. Statutes taking this form
       pose a preliminary question—and its answer switches us to the
       appropriate analytical track. [The court] must determine whether


(2018). However, Islas-Saucedo has not challenged the definition of “habitation” under Texas
Penal Code § 30.02.
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      the statute sets forth alternative means of committing a single
      substantive crime, or separate elements, effectively defining
      distinct offenses. We refer to the former sort of statutes as
      “indivisible,” and we call the latter “divisible.”

Herrold, 883 F.3d at 521–22 (internal quotation marks and citations omitted).
      “If a statute describes alternative means of committing one offense (i.e.,
if a statute is indivisible), we perform the categorical approach.” Id. at 522
(citing Mathis, 136 S. Ct. at 2248). The categorical approach “examine[s] the
elements of the offense, rather than the facts underlying the conviction or the
defendant’s actual conduct, to determine whether the enhancement applies.”
United States v. Rodriguez-Negrete, 772 F.3d 221, 225 (5th Cir. 2014) (internal
quotation marks and citation omitted). If “the elements of the statute forming
the basis of the defendant’s conviction . . . are the same as, or narrower than,
those of the generic offense[,]” a categorical match exists, and the enhancement
is proper. Descamps, 570 U.S. at 257.
      “If the alternative terms of a statute outline elements of distinct offenses
(i.e., if a statute is divisible), [the court utilizes the modified categorical
approach].” Herrold, 883 F.3d at 522 (citing Mathis, 136 S. Ct. at 2249). Under
the modified categorical approach, “a sentencing court looks to a limited class
of documents (for example, the indictment, jury instructions, or plea
agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Mathis, 136 S. Ct. at 2249. “The court can then
compare that crime, as the categorical approach commands, with the relevant
generic offense.” Id.
   B. Generic Burglary and Texas Burglary
      In Taylor v. United States, the Supreme Court held that Congress
intended “burglary” under the ACCA to have a “uniform definition.” 495 U.S.
575, 590–92 (1990). The Supreme Court declined to adopt the common law’s

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definition of burglary—“the breaking and entering of the dwelling house of
another in the nighttime with the intent to commit a felony”—because that
narrow definition “ha[d] little relevance to modern law enforcement concerns”
that animated the ACCA. Id. at 580 n.3, 593 (citation omitted). The Supreme
Court instead adopted a broader construction of “burglary” that encompasses
“at least” any “unlawful or unprivileged entry into, or remaining in, a building
or structure, with intent to commit a crime.” Id. at 598. The Taylor Court’s
definition gave effect to Congress’s intent when passing the ACCA that
sentence enhancements would apply for an offense with “inherent potential for
harm to persons” while avoiding both (1) “arcane technicalities of the common-
law definition of burglary” and (2) sentence enhancements based on mere
labels used by the state of conviction. Id. at 588–89.
      In Texas, a person commits burglary when, “without the effective
consent of the owner,” that person:
      (1) enters a habitation . . . not then open to the public, with intent
          to commit a felony, theft, or an assault; or
      (2) remains concealed, with intent to commit a felony, theft, or an
          assault, in a . . . habitation; or
      (3) enters a . . . habitation and commits or attempts to commit a
          felony, theft, or an assault.

TEX. PENAL CODE § 30.02(a) (2017).
   C. Herrold
      In Conde-Castaneda, this court held that a conviction under § 30.02(a)(1)
constitutes generic burglary, while a conviction under § 30.02(a)(3) does not.
753 F.3d at 176. However, this court also held that this overbreadth can be
overcome for purposes of a sentence enhancement because the Texas burglary
statute is divisible and thus the modified categorical approach can be used to
determine which of the three alternatives of § 30.02(a) forms the basis of the
defendant’s conviction. Id. at 176–77.

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                                 No. 16-40672
      Then, in Mathis, the Supreme Court clarified that a statute is
indivisible—and thus not amenable to the modified categorical analysis—if it
lists alternative means rather than alternative elements. 136 S. Ct. at 2247–
57. Following the Supreme Court’s decision in Mathis, this court reaffirmed
that § 30.02(a) was divisible. Uribe, 838 F.3d at 669–71.
      On February 20, 2018, this court sitting en banc issued a decision in
Herrold, holding that the Texas burglary statute is indivisible, thereby
overruling Uribe. See Herrold, 883 F.3d at 526–29. Consequently, the court
applied the categorical approach to § 30.02(a)(3) and concluded that it was
broader than generic burglary as it “contain[ed] no textual requirement that a
defendant’s intent to commit a crime contemporaneously accompany a
defendant’s unauthorized entry.” Herrold, 883 F.3d at 531. As a result of its
findings that § 30.02(a)(3) was broader than generic burglary, and because §§
30.02(a)(1) and (a)(3) are indivisible in light of Mathis, this court concluded
that neither of Herrold’s two convictions under the Texas burglary statute
qualified as a prior burglary conviction for purposes of a sentence enhancement
under the ACCA. Herrold, 883 F.3d at 536–37.
      This court has held that the same “generic, contemporary” definition of
“burglary” applies under the ACCA, which was at issue in Herrold, and under
former § 2L1.2, which is at issue here. See, e.g., United States v. Ortega-
Gonzaga, 490 F.3d 393, 394–95 (5th Cir. 2007); United States v. Bernel-Aveja,
844 F.3d 206, 212–14 (5th Cir. 2016) (employing an ACCA case in its analysis
of whether the defendant’s “burglary of a habitation” conviction qualified for
an enhancement under former § 2L1.2). Further, this court has held that
Mathis applies to the categorical analysis under the Guidelines, not just the
ACCA. United States v. Hinkle, 832 F.3d 569, 574–75 (5th Cir. 2016). In
addition, Texas burglary of a habitation does not have “as an element the use,
attempted use, or threatened use of physical force against the person of
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                                  No. 16-40672
another.” § 2L1.2, cmt. n.1(B)(iii); see United States v. Castaneda, 740 F.3d 169,
172 (5th Cir. 2013) (per curiam) (unpublished); United States v. Turner, 305
F.3d 349, 351 (5th Cir. 2002). Thus, the district court erred in finding that
Islas-Saucedo’s conviction under the Texas burglary statute qualified as a
burglary offense for purposes of § 2L1.2(b)(1)(A)(ii). See United States v. Gasca,
714 F. App’x 414, 415 (5th Cir. 2018) (per curiam) (unpublished).
   D. Plain Error Analysis
      1. Affirmative Waiver of Error
      Islas-Saucedo has not affirmatively waived, that is “intentional[ly]
relinquish[ed] or abandon[ed],” his right to seek relief from the error. United
States v. Olano, 507 U.S. 725, 733 (1993) (citation omitted). Rather, Islas-
Saucedo “forfeited the claim of error through his . . . failure to raise the
argument in the District Court.” Puckett, 556 U.S. at 138.
      2. Clear or Obvious Error
      “[W]here the law is unsettled at the time of trial but settled by the time
of appeal, the ‘plainness’ of the error should be judged by the law at the time
of appeal.” United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012)
(en banc). In two recent decisions, this court addressed whether treating Texas
burglary as an enhancement under former § 2L1.2(b)(1)(A)(ii) was clear error
in light of Herrold. In United States v. Hernandez-Saenz, this court found that
the district court’s assessment of a 16-level enhancement under §
2L1.2(b)(1)(A)(ii) based on a prior Texas burglary conviction was a clear or
obvious error in light of Herrold. 733 F. App’x 144, 148 (5th Cir. 2018) (per
curiam) (unpublished). More recently, in United States v. Fuentes-Canales, this
court concluded the same. No. 15-41476, 2018 WL 4140657, at *3–4 (5th Cir.
Aug. 30, 2018). Therefore, the district court’s treatment of Islas-Saucedo’s
Texas burglary offense for purposes of former § 2L1.2(b)(1)(A)(ii) was clear
error in light of Herrold.
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       3. Affect on Substantial Rights
       To show that the error affected Islas-Saucedo’s substantial rights in the
sentencing context, he must show “a reasonable probability that, but for the
district court’s misapplication of the Guidelines, he would have received a
lesser sentence.” United States v. Martinez-Rodriguez, 821 F.3d 659, 663–64
(5th Cir. 2016) (internal quotation marks and citation omitted). “When a
defendant is sentenced under an incorrect Guidelines range . . . the error itself
can, and most often will, be sufficient to show a reasonable probability of a
different outcome absent the error.” Molina-Martinez v. United States,
136 S. Ct. 1338, 1345 (2016).
       If the district court were to determine that Islas-Saucedo’s burglary
conviction qualifies as an “aggravated felony” for purposes of the eight-level
enhancement under § 2L1.2(b)(1)(C), then Islas-Saucedo would face a
Guidelines range of 24 to 30 months, which is 12 to 18 months less than his
42-month sentence. 5 United States v. Calderon-Pena, 383 F.3d 254, 262 (5th
Cir. 2004) (en banc) (per curiam) (reversing 16-level crime of violence
enhancement and leaving it to the district court to determine on remand
whether the defendant’s prior conviction qualified for an eight-level
enhancement under the “aggravated felony” provisions of § 2L1.2).
       The district court did not provide any explanation as to what it would
have done had it considered the correct Guidelines range. “Where . . . the



       5 Islas-Saucedo’s Texas burglary conviction would likely qualify as an “aggravated
felony” under § 2L1.2(b)(1)(C), which would result in an eight-level enhancement instead of
a 12-level enhancement. See United States v. Godoy, 890 F.3d 531, 536–40 (5th Cir. 2018)
(“[This court] has repeatedly treated § 30.02 as a crime of violence . . . meaning § 30.02 is a
qualifying felony under § 2L1.2(b)(1)(C).”). This result would lower Islas-Saucedo’s total
offense level from 17 to 13, which, when combined with his criminal history category of IV,
would yield a new Guidelines range of 24–30 months. Had Islas-Saucedo been sentenced to
30 months (or 12 months less than his current 42-month sentence), then his release date
would have been 12 months earlier, or May 31, 2018.
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                                   No. 16-40672
record is silent as to what the district court might have done had it considered
the correct Guidelines range, the court’s reliance on an incorrect range in most
instances will suffice to show an effect on the defendant’s substantial rights.”
Molina-Martinez, 136 S. Ct. at 1347. In Hernandez-Saenz, this court found that
the district court’s error affected the defendant’s substantial rights. 733 F.
App’x at 149. This court remanded the case for re-sentencing in light of
Herrold. Id. at 150; see also United States v. Prentice, 721 F. App’x 393, 394
(5th Cir. 2018) (per curiam) (unpublished) (same). Islas-Saucedo has
“satisf[ied] his burden to show prejudice by pointing to the application of an
incorrect, higher Guidelines range and the sentence he received thereunder.”
Molina-Martinez, 136 S. Ct. at 1347; see also Martinez-Rodriguez, 821 F.3d at
664.
       4. Discretion to Correct Error
       When a district court’s incorrect application of the Guidelines results in
a sentence that is above the correct Guidelines range, this court has exercised
its discretion to correct the error. See, e.g., United States v. Mudekunye, 646
F.3d 281, 290–91 (5th Cir. 2011) (per curiam) (vacating on plain error review
a sentence 19 months above top end of the correct Guidelines range); United
States v. Price, 516 F.3d 285, 289–90 (5th Cir. 2008) (same with respect to 18-
month disparity); United States v. Miller, 657 F. App’x 265, 271 (5th Cir. 2016)
(per curiam) (unpublished) (same with respect to 15-month disparity); United
States v. Santacruz-Hernandez, 648 F. App’x 456, 457–58 (5th Cir. 2016) (per
curiam) (unpublished) (same with respect to two-month disparity); United
States v. Carrizales-Jaramillo, 303 F. App’x 215, 217 (5th Cir. 2008) (per
curiam) (unpublished) (same with respect to one-month disparity).
       This court has the discretion to correct the error only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See Puckett,
556 U.S. at 135. Recently, the Supreme Court addressed this court’s
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application of the fourth prong of plain error review to Guidelines calculation
errors in Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906–11 (2018). The
Supreme Court held that this court’s articulation of the fourth prong of plain
error review was “unduly restrictive” and “too narrowly confine[d] the extent
of a court of appeal’s discretion.” Rosales-Mireles, 138 S. Ct. at 1906.
      The Supreme Court noted that an exercise of discretion at the fourth
prong still requires a case-specific and fact-intensive inquiry, and “[t]here may
be instances where countervailing factors satisfy the court of appeals that the
fairness, integrity, and public reputation of the proceedings will be preserved
absent correction.” Id. at 1909. However, no such factors were present in that
case. Id. The Supreme Court concluded that “[i]n the ordinary case, as here,
the failure to correct a plain Guidelines error that affects a defendant’s
substantial rights will seriously affect the fairness, integrity, and public
reputation of judicial proceedings.” Id. at 1911.
      In this case, the district court’s error resulted in a higher Guidelines
range than would be applicable without the error, and there is “a reasonable
probability that” Islas-Saucedo will serve a longer prison sentence than he
would have had the error not occurred. Id. at 1909. Thus, there is a risk that
he will serve additional and unwarranted prison time, which “undermines the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 1908.
      On the question of abeyance, we have traditionally held that even when
the Supreme Court has granted certiorari in a relevant case, we will continue
to follow binding precedent. See Wicker v. McCotter, 798 F.2d 155, 158 (5th Cir.
1986). In United States v. Stewart, the defendant’s sentence was enhanced by
two prior Texas burglary convictions. 732 F. App’x 314, 315 (5th Cir. 2018) (per
curiam) (unpublished). Similarly, the Government requested that the court
hold Stewart’s appeal in abeyance pending the Supreme Court’s consideration
of the Government’s pending certiorari petition in Herrold. Id. This court
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                                   No. 16-40672
reasoned that Stewart’s “relatively brief remaining time on his sentence”
supported the decision to deny the abeyance request and to vacate and remand
for re-sentencing. Id. at 316.
      To date, the Supreme Court has not granted certiorari in Herrold. We
recognize that situations may arise that would condone a pause in our
application of a decision that is being challenged in the Supreme Court.
However, given that Islas-Saucedo’s revised sentence would likely equate to
time served, this court is compelled to grant him the benefit of the law that
currently exists.
                                 IV.   CONCLUSION
      For the foregoing reasons, we VACATE and REMAND for re-sentencing.
The Government’s request to hold the appeal in abeyance is DENIED. All
pending motions are DENIED. The mandate shall issue forthwith.




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