Case: 19-50401       Document: 00515525690      Page: 1     Date Filed: 08/13/2020


                         REVISED August 13, 2020


         United States Court of Appeals
              for the Fifth Circuit                             United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                                 August 12, 2020
                                No. 19-50401                      Lyle W. Cayce
                                                                       Clerk

 United States of America,

                                                          Plaintiff—Appellee,

                                    versus

 Vicente Galileo Penado-Aparicio,

                                                       Defendant—Appellant.


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:16-CR-947-1


 Before Stewart, Clement, and Costa, Circuit Judges.
 Carl E. Stewart, Circuit Judge:
        Defendant-Appellant Vicente Galileo Penado-Aparicio (“Penado”)
 timely appeals his imprisonment sentence for illegal reentry under 8 U.S.C.
 § 1326. He contends that the district court vindictively resentenced him to a
 harsher sentence.
        Penado’s initial sentence was 72 months that was to run concurrently
 with a separate 24-month term. He appealed the 72-month sentence for
 violating the Ex Post Facto Clause, and the case was remanded for
 resentencing. On remand, the district court sentenced him to a 60-month
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                                   No. 20-30025


 term but ordered that the sentence now run consecutively to the 24-month
 sentence for a total of 84 months, a year longer than the original sentence.
        The record evidence supports a presumption of vindictiveness that
 has not been rebutted as required by Fifth Circuit case law. Plain error has
 been demonstrated. We therefore modify this judgment so that Penado’s
 imprisonment terms run concurrently.
                                         I.
        Penado, a citizen of El Salvador, is not authorized to live in the United
 States, and in 2012, he was removed after being convicted of illegal reentry
 in the District of Nevada. For this conviction, he was sentenced to 30
 months’ imprisonment and three years’ supervised release.
        First Sentencing Hearing, Revocation Hearing, and Appeal. In June 2016,
 while on supervised release, U.S. Customs and Border Patrol apprehended
 Penado near Carrizo Springs, Texas. Prior to this, he had not applied for legal
 reentry or otherwise received legal permission to reenter the United States.
 He was later indicted for illegally reentering the United States after removal,
 in violation of 8 U.S.C. § 1326(a). A jury subsequently found Penado guilty
 of this charge.
        The probation office later submitted a presentence investigation
 report (“PSR”) to the district court. The PSR outlined Penado’s previous
 convictions which included convictions for domestic battery, attempted
 burglary, driving under the influence, battery of a custodial officer, and illegal
 reentry. Given Penado’s criminal history, the PSR calculated an advisory
 guidelines range of 70 to 87 months. The recommended range was calculated
 using the November 1, 2016 version of the United States Sentencing
 Guidelines (“USSG”). Neither side objected to the PSR. At the April 2017
 sentencing hearing, the district court adopted the PSR’s recommended range




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                                       No. 20-30025


 and sentenced Penado to 72 months of imprisonment, followed by three years
 of supervised release.
         Immediately after the sentencing hearing, the district court held a
 revocation hearing to sentence Penado for violating his 2012 supervised
 release terms. There, it sentenced several defendants, including Penado, for
 similar violations. Before the court revoked the terms of that release and
 sentenced Penado, it stated to another defendant “I no longer have to run
 [sentences] concurrently. I can run them consecutively.” The Government
 did not seek a consecutive sentence and only sought that the court sentence
 Penado to a within-the-guidelines range. The court sentenced Penado to a
 24-month imprisonment term to run concurrently with the 72-month
 sentence.
         Penado appealed this sentence on the grounds that the district court
 had violated the Ex Post Facto Clause because he was sentenced under the
 2016 USSG Manual—which produced a substantially higher advisory range
 (70 to 87 months) than the 2015 USSG advisory range (30 to 37 months).1
 The Government agreed and filed an unopposed motion to vacate the first
 sentence and remand the case to the district court for resentencing. See
 United States v. Penado-Aparicio, Case No. 18-50304 (5th Cir. Nov. 29, 2018),
 ECF No. 35. Our court granted the motion and issued an order vacating the
 sentence and remanding to the district court for resentencing.




         1
           The Ex Post Facto Clause is violated if a defendant is sentenced under a USSG
 manual that produces a higher range than the manual that was in effect at the time that the
 offense was committed. See Peugh v. United States, 569 U.S. 530, 544 (2013). Here, U.S.
 Border Patrol arrested Penado in June 2016, and at that time, the 2015 USSG were still in
 effect. Although the 2016 USSG were in place at sentencing, the district should have
 nonetheless sentenced Penado under the 2015 USSG as his criminal conduct occurred
 while the 2015 manual was in force.




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                                 No. 20-30025


        Second Sentencing Hearing and Instant Appeal. On April 15, 2019, the
 district court resentenced Penado. No new PSR was filed prior to this
 hearing. During the resentencing hearing, the court was displeased and
 noted that it had “real heartburn” that neither party objected to the use of
 the 2016 USSG in the previous hearing.
        The court determined that under the 2015 USSG, the advisory range
 would be 30 to 37 months.
        After confirming the range with Penado’s counsel and the Probation
 office, the Government argued for an above-of-the-guidelines sentence
 because (1) Penado already received a 30-month sentence for his 2012 illegal
 reentry conviction; and (2) based on his lengthy criminal history. In other
 words, the Government advocated for a higher sentence using the same
 convictions on the record from the previous sentencing hearing. During
 allocution with the court, Penado accepted responsibility for his illegal
 reentry, promised not to illegally reenter the states again, and characterized
 his past criminal conduct as “accident[s]” and “mistakes.”
        In assessing his advisory range, prior convictions which included his
 violent felonies, and the nature and circumstances of the offense, the court
 found that the advisory guidelines were not adequate. It ultimately varied
 from the range of 30 to 37 months and sentenced him to 60 months. This
 included a three-year term of supervised release, but the court made clear
 that the resentence would run “consecutive to any other sentence.” The
 court acknowledged that the previous sentence included a 24-month
 concurrent sentence for violating his 2012 supervised release terms.
 Nevertheless, the court emphasized that it was now making a change in the
 nature of the concurrent sentence because “it would have been concurrent
 at the sentence I gave before, but it’s not going to be concurrent now.” There
 were no objections. Penado now appeals.




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                                             II.
         Penado did not raise any objections at resentencing; in turn, we review
 for plain error. United States v. Benitez, 809 F.3d 243, 248 (5th Cir. 2015).
 Plain error review requires Penado to show an error that is (1) a clear and
 obvious one (2) that affects his substantial rights. See Puckett v. United States,
 556 U.S. 129, 135 (2009). If he can satisfy these requirements, this court
 could, in its discretion, remedy the error if it “seriously affect[s] the fairness,
 integrity or public reputation of judicial proceedings.” Id. (alteration in
 original). The analysis below tracks these plain error factors.
                                            III.
         Penado challenges his remand sentence because the district court’s
 imposition of this higher total sentence was unconstitutionally vindictive.2
         “Due process of law . . . requires that vindictiveness against a
 defendant for having successfully attacked his first conviction must play no
 part in the sentence he receives after a new trial.” North Carolina v. Pearce,
 395 U.S. 711, 725 (1969), overruled on other grounds, Alabama v. Smith, 490
 U.S. 794 (1989). In other words, because “fear of such vindictiveness may []
 deter a defendant’s exercise of the right to appeal or collaterally attack his
 first conviction,” it is considered unconstitutional for a court to vindictively
 sentence a defendant following a successful appeal. Id.
         Clear/Obvious Error. There is a presumption that a trial court acts
 vindictively “whenever a judge imposes a more severe sentence upon a



         2
            Alternatively, Penado contends that the district court reversibly erred when it
 exceeded the scope of our mandate order, violating the law of the case doctrine. See United
 States v. Pineiro, 470 F.3d 200, 204 (5th Cir. 2006) (per curiam). Because we find plain
 error on the ground of vindictiveness, we decline to discuss Penado’s alternative
 contention.




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 defendant” after a successful appeal. Id. at 726. If the new sentence is greater
 than the original sentence in its totality, then the new sentence is considered
 more severe. United States v. Campbell, 106 F.3d 64, 68 (5th Cir. 1997)
 (stating that under the aggregate approach, because the defendant’s new
 sentence was less than his initial sentence, the defendant did not receive a
 harsher sentence); cf. United States v. Moore, 997 F.2d 30, 38 (5th Cir. 1993)
 (stating that when “the penalty on remand is not harsher than the original
 sentence, . . . there can be no claim at all of vindictiveness upon
 resentencing” (cleaned up)) (internal quotations and citation omitted).
        The parties agree that because the district court imposed a more
 severe sentence on Penado following his successful appeal, his sentence is
 presumptively vindictive. Penado’s remand sentence of 84 months is more
 severe because it is one year longer in totality compared to his original
 sentence of 72 months. See Campbell, 106 F.3d at 68. Penado is therefore
 entitled to the presumption of vindictiveness.
        The presumption of vindictiveness may be rebutted if the sentencing
 court “articulate[s] specific reasons, grounded in particularized facts that
 arise either from newly discovered evidence or from events that occur after
 the original sentencing” that warrant a more severe sentence. United States
 v. Resendez-Mendez, 251 F.3d 514, 519 (5th Cir. 2001) (emphasis added). To
 be clear, it is the district court’s responsibility to verbalize this new
 information in a manner that “affirmatively appear[s]” in the record and
 directly supports the imposition of the harsher sentence. Pearce, 395 U.S. at
 726.
        Upon review of this record, the court predicated the 60-month
 sentence on facts already known to it. Indeed, to justify the upward variance
 from the advisory range, the court relied on Penado’s criminal history—
 which was already detailed in the initial PSR that the district court read and




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 relied on in imposing Penado’s original sentence. These stated reasons
 cannot be considered “new information or subsequent occurrences that
 objectively support imposition of an enhanced sentence on remand.”
 Resendez-Mendez, 251 F.3d at 519.
        The Government’s position is that such objective new information is
 present in the record. At oral argument, the Government pointed to the
 court’s colloquy with Penado where he characterized his past criminal
 conduct as “mistakes” and argued that this allocution can be inferred as
 newly discovered facts. We disagree. Not only is this position without
 precedent but we explicitly stated otherwise in United States v. Resendez-
 Mendez that “the sentencing court’s subjective discrediting of the
 defendant’s [] ambiguous statements at allocution is objectively inadequate
 to rebut the presumption of vindictiveness.” Id. at 518. The new evidence
 must be “particularized facts,” not particularized inferences. And the record
 is clear that the district court was not presented with nor did it articulate any
 additional “particularized facts” that derived from new evidence or events.
 In turn, considering the absence of “newly discovered facts, changed
 circumstances, or post-sentencing occurrences,” the presumption of
 vindictiveness has not been rebutted. Id.
        Given that this presumption has been sustained, Penado was
 unconstitutionally sentenced. We consider this an error that clearly and
 obviously runs contrary to due process. See United States v. Olano, 507 U.S.
 725, 733–34 (1993) (stating that plain error is satisfied where there is a
 deviation from an established legal rule at the time of appellate review).
        Effect on Substantial Rights.       “To show that an error affects a
 defendant’s substantial rights, the defendant must show that [the error]
 affected the outcome in the district court,” i.e., the defendant “must
 demonstrate a probability ‘sufficient to undermine confidence in the




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 outcome.’” United States v. Mondragon-Santiago, 564 F.3d 357, 364 (5th Cir.
 2009) (quoting United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005)). In
 the instant sentence, there is a reasonable probability that the error—judicial
 vindictiveness—affected Penado’s rights enough to sufficiently undermine
 the outcome of his resentencing. Thus, the district court’s clear and obvious
 error seriously affected Penado’s substantial rights.
        Whether to Exercise Discretion. The panel may exercise its discretion
 to correct the district court’s plain error if it “seriously affect[s] the fairness,
 integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at
 135; see United States v. John, 597 F.3d 263, 288 (5th Cir. 2010)
 (“[U]ltimately, whether a sentencing error seriously affects the fairness,
 integrity, or public reputation of judicial proceedings is dependent upon the
 degree of the error and the particular facts of the case.”). Of note, while
 Penado is considered a recidivist based on his criminal history, the Supreme
 Court has held that recidivism can no longer weigh against the exercise of
 discretion and “expects relief to ordinar[il]y be available to defendants in
 sentencing cases when the first three prongs were met.” United States v.
 Urbina-Fuentes, 900 F.3d 687, 699 (5th Cir. 2018) (cleaned up) (quoting
 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018)).
        It is the constitutional nature of the error here that merits its
 correction. Our precedent identifies constitutional errors as errors more
 readily found to affect seriously the fairness, integrity, and public reputation
 of judicial proceedings. See United States v. Knowles, 29 F.3d 947, 951 (5th
 Cir. 1994) (stating that “we have long held that, under the plain error inquiry,
 errors of constitutional dimension will be noticed more freely than less
 serious errors.”).        Additionally, Penado’s remedy—reforming the
 consecutive nature of his sentence—is a straightforward sentencing
 judgment modification. See 28 U.S.C. § 2106 (authorizing “any . . . court of
 appellate jurisdiction” to “modify, vacate, set aside or reverse any



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                                     No. 20-30025


 judgment”). This remedy does not require retrying Penado or remanding
 the case back to square one. Granting appellate relief to Penado only requires
 that we exercise our appellate authority to modify the consecutive sentencing
 designation so that his sentence runs concurrent with his revocation
 sentence. Id.; cf. United States v. Cook, 670 F. App’x 326, 328 (5th Cir. 2016)
 (per curiam) (exercising § 2106 authority to modify judgment to “to reflect
 that [defendant]’s federal term of imprisonment is to run concurrently with
 the related [] sentences”). More importantly, granting his request will
 effectively eliminate any perception of a potential constitutional error. See
 Rosales-Mireles, 138 S. Ct. at 1907–08 (explaining that courts should correct
 plain errors when necessary to “maintain[] public perception of fairness and
 integrity in the justice system”).
        Accordingly, we hold that exercising our discretion here is warranted
 by controlling circuit precedent.
                                         III.
        For the foregoing reasons, the district court plainly erred in ordering
 the instant sentence to run consecutive to Penado’s revocation sentence. We
 therefore exercise our appellate authority, under 28 U.S.C. § 2106, to modify
 the judgment to reflect that Penado’s 60-month term of imprisonment is to
 run concurrently with his 24-month revocation sentence.




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