     Case: 15-11196       Document: 00513939213         Page: 1     Date Filed: 04/04/2017




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

                                       No. 15-11196                               FILED
                                                                               April 4, 2017
                                                                             Lyle W. Cayce
Cons w/ No. 15-11197                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

CHRISTOPHER BENJAMIN BLANTON,

                                                  Defendant - Appellant




                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-225-1


Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Regarding Christopher Benjamin Blanton’s six challenges to his
sentences, imposed after his guilty-plea convictions of possession of a firearm
by a convicted felon, and conspiracy to commit pharmacy burglary, primarily
at issue is whether, under plain-error review, the district court’s reliance on




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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outdated Sentencing Guidelines requires resentencing.             VACATED and
REMANDED.
                                         I.
      Between November 2013 and July 2014, Blanton and co-conspirators
made numerous attempts, some successful, to burglarize Walgreens
pharmacies in Texas and Oklahoma. In November 2014, Blanton was indicted
in the northern district of Texas for possession of a firearm by a felon. That
December, he and five others were indicted in the western district of Oklahoma
for conspiracy to “break into Walgreens Pharmacies and steal controlled
substances for personal use and illegal distribution”. Blanton’s conspiracy
charge was transferred to join his firearm-possession charge in the northern
district of Texas. In addition, relative to the Walgreens burglaries, Blanton
was convicted, before and after federal sentencing, in two Texas counties on
state charges.
      In the northern district of Texas, Blanton pleaded guilty to one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1),
and one count of conspiracy to commit pharmacy burglary, in violation of 18
U.S.C. §§ 2118(d) and 2. His sentencing hearing occurred on 12 November
2015, 11 days after the 2015 Sentencing Guidelines went into effect. See
U.S.S.G. § 2B2.1(b)(2)(B) (1 Nov. 2015 ed.).
      For the conspiracy charge, the court overruled Blanton’s objections to
enhancements recommended by the presentence investigation report (PSR)
and adopted the PSR’s Guidelines calculations. In accordance with the PSR,
which was based on the 2014 Guidelines, the court, inter alia, imposed a one-
level enhancement, pursuant to Guideline § 2B2.1(b)(2)(B) (1 Nov. 2014 ed.),
for a Walgreens burglary resulting in a $2,653.34 loss. Blanton was sentenced,



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inter alia, to consecutive terms of 37 months for the firearm conviction and 41
months for the conspiracy conviction.
                                          II.
      Blanton contends the court: (1) erred by using an incorrect Guidelines
version; (2) erred by not grouping the offenses under Guideline § 3D1.1; (3)
erred by applying 13 “pseudocounts” of conspiracy under § 3D1.1; (4)
erroneously applied the Guideline § 2K2.1(b)(6) enhancement for possession of
a firearm in connection with another felony offense; (5) erroneously applied the
Guideline § 3C1.2 enhancement for reckless endangerment; and (6) should
have ordered any sentences, pursuant to Blanton’s anticipated state
indictments, to run concurrently to his federal sentences, under Guideline
§ 5G1.3(c), and granted a downward departure for time served on a Texas
conviction, under Guideline § 5K2.23. Issue five was preserved and would be
reviewed here for clear error. The other issues, however, were not preserved;
therefore, they would be reviewed here only for plain error.
      It is necessary, however, to review only the issue concerning the outdated
2014 Guidelines. Blanton made a blanket objection to the procedural and
substantive reasonableness of the sentence; he acknowledges he did not object
to the court’s use of those Guidelines.
      Pursuant to the 2014 Guidelines, in effect at the time of the final PSR
addendum, a crime resulting in a minimum $2,500 loss merited a one-level
enhancement. See U.S.S.G. § 2B2.1(b)(2)(B) (1 Nov. 2014 ed.). On the other
hand, the 2015 Guidelines increased the minimum threshold to $5,000, so that
the earlier-referenced Walgreens loss would no longer trigger the one-level
increase. See U.S.S.G. § 2B2.1(b)(2)(B) (1 Nov. 2015 ed.). Accordingly, Blanton
challenges the court’s using the 2014 Guidelines on 12 November 2015, after
the 2015 version took effect.

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      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). As noted, because Blanton did not preserve the outdated-
Guidelines issue in district court, review is only for plain error. E.g., United
States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Plain-error review explores four elements.          See Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016). The first three are: (1) an error
“not . . . intentionally relinquished or abandoned”; (2) that is “clear or obvious”;
(3) and “affected the defendant’s substantial rights”. Id. “Once these three
conditions have been met, the court of appeals should exercise its discretion to
correct the forfeited error if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
      The Government concedes the first two elements are satisfied; therefore,
we proceed to the third: substantial-rights affected vel non. In the light of
recent Supreme Court precedent, Molina-Martinez, as discussed infra, Blanton
establishes the use of the 2014 Guidelines violated his substantial rights. See
id. at 1345.
      “When a defendant is sentenced under an incorrect Guidelines range—
whether or not the defendant’s ultimate sentence falls within the correct
range—the error itself can, and most often will, be sufficient to show a
reasonable probability of a different outcome absent the error.” Id. As our
court established,
      [p]ursuant to § 1B1.11(a) and 1B1.11(b)(1), p.s., and 18 U.S.C.
      § 3553(a)(4)(A), a district court should apply the Guidelines in
      effect on the date the defendant is sentenced, unless the application
      of such Guidelines would violate the Ex Post Facto Clause of the

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      Constitution, in which event, the Guidelines in effect on the date
      of the offense should be used.

United States v. Burgos, 137 F.3d 841, 843 (5th Cir. 1998) (emphasis added).
Because the Ex Post Facto Clause is not at issue here, the district court should
have applied the Guidelines in effect on the sentencing date.
      The Government maintains Blanton’s substantial rights were not
affected because the correctly-calculated Guidelines range for the conspiracy
conviction (37-46 months) overlaps with the improperly-calculated range (41-
51 months), and Blanton’s 41-month sentence for that conviction falls within
both. The Supreme Court, however, remanded in Molina-Martinez in similar
circumstances, finding “at least a reasonable probability” a lower sentence
would have been imposed. 136 S. Ct. at 1348. The same “at least reasonable
probability” is present here; in short, Blanton’s substantial rights were affected
by the error.
      Our court’s precedent on the fourth plain-error prong—whether the court
should exercise discretion to remedy the error—weighs in favor of remedy for
a situation like Blanton’s, in which the sentence exceeded the lower end of the
properly-calculated sentencing range by four months. Compare United States
v. Martinez-Rodriguez, 821 F.3d 659, 664–67 (5th Cir. 2016) (36-month
disparity between applied and proper Guidelines ranges; remanded), and
United States v. Segura-Sanchez, 452 F. App’x 471, 474–75 (5th Cir. 2011)
(sentence exceeded properly-calculated range by three months; remanded),
with United States v. Emanuel-Fuentes, 639 F. App’x 974, 977 (5th Cir. 2015)
(sentence one month above proper range not “materially or substantially”
higher; no remand), and United States v. Avalos-Martinez, 700 F.3d 148, 154
(5th Cir. 2012) (sentence one month higher than proper range; no remand).



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      Because Blanton’s sentence was improperly calculated using outdated
Guidelines, because a properly-calculated Guidelines range would have been
four months lower for this error alone, and because the court expressly tied its
sentencing decision to the low end of the erroneous-applied Guidelines
sentencing range, this reversible plain error “seriously affects the fairness,
integrity or public reputation of judicial proceedings”. Molina-Martinez, 136
S. Ct. at 1343. Accordingly, we exercise our discretion to correct the error.
                                        III.
      For the forgoing reasons, the judgment is VACATED, and this matter is
REMANDED to district court for resentencing in accordance with the 2015
version of the Sentencing Guidelines.




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