          United States Court of Appeals
                     For the First Circuit

No. 17-1702

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      RUMENI DANIEL ROMERO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                             Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     Elaine Pourinski on brief for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, and
Andrew E. Lelling, United States Attorney, on brief for appellee.


                          July 18, 2018
            LYNCH, Circuit Judge.         Rumeni Daniel Romero pled guilty

to unlawful re-entry into the United States, in violation of

8 U.S.C. § 1326(a) and (b)(2).            After finding Romero subject to

the   undisputed    46-57     month    advisory   United     States   Sentencing

Guidelines range calculated in his presentence report (PSR), the

district court sentenced Romero to a term of 42 months in prison.

On appeal, Romero points out for the first time that the PSR

erroneously applied an enhancement, but for which his Guidelines

range would be only 30-37 months.                 We vacate and remand for

resentencing.

            The    relevant    facts    follow.      On    January    24,     2017,

Department of Homeland Security agents apprehended Romero in the

course of an investigation in Chelsea, Massachusetts.                   Romero, a

native of Honduras, had been ordered removed from the United States

and deported to Honduras on four occasions between 2006 and 2013.

On February 23, he was charged with unlawful re-entry, in violation

of 8 U.S.C. § 1326(a) and (b)(2). On April 3, he pled guilty.

            The Probation Office prepared Romero's PSR on June 5,

2017.     The report applied, inter alia, a four-level enhancement

under U.S.S.G. § 2L1.2(b)(2)(D) on the grounds that by the time

Romero was first deported, he had already been convicted of

felonies other than illegal re-entry: use of a motor vehicle

without    authority,   and     assault    and    battery.      Based    on   that

enhancement and other adjustments, Romero's offense level was 19

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and his Guidelines range was 46-57 months.                Romero did not object

to the enhancement; instead, he stated in his sentencing memorandum

that "there is no dispute that the [Guidelines range] is 46-57

months (level 19, CHC IV)."

             At Romero's sentencing hearing, held on July 11, 2017,

the district court checked with the parties that it correctly

understood that "there is no dispute with respect to the sentencing

guideline range."        Romero's counsel confirmed that the court's

understanding was "correct" and that the offense level of 19 and

corresponding Guidelines range of 46-57 months set forth in the

PSR rested on "correct calculations."               After hearing the parties'

sentencing    recommendations      and       noting    that   it    had    considered

Romero's    Guidelines     range   as    a    "beginning      point,"      the   court

sentenced    Romero   to    a   below-guidelines          term      of    42   months'

imprisonment.

             On appeal, Romero claims for the first time that the

district court's application of the § 2L1.2(b)(2)(D) enhancement

was in error.      He cites Application Note 3 to § 2L1.2, which

instructs that for purposes of applying subsection (b)(2) "only

those convictions that receive criminal history points" should be

used. The purported predicate convictions in Romero's PSR did not

receive    criminal   history      points.          Without     the      enhancement,

Romero's    offense   level     would    be    15     instead      of    19,   and   his

Guidelines range would be 30-37 months instead of 46-57 months.

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            We   review   unpreserved      challenges    to    the     procedural

reasonableness of a sentence for plain error.                 United States v.

Rondón-García, 886 F.3d 14, 20 (1st Cir. 2018).                       Under that

standard, the defendant must show "(1) that an error occurred

(2) which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the   fairness,    integrity,     or     public    reputation     of    judicial

proceedings."     United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001).

            The government concedes that Romero can establish plain

error because application of the § 2L1.2(b)(2)(D) enhancement was

a "clear and obvious" error that affected his "substantial rights."

And the Supreme Court recently held 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."     Rosales-Mireles v. United States, 138 S. Ct. 1897,

1911 (2018).     Rosales-Mireles is on all fours with Romero's case,

as it involved an error in a presentence report, unnoticed by the

parties and the district court, that inflated the Guidelines range

of a defendant convicted of illegal re-entry from 70-87 months to

77-96 months. See id. at 1901.

            The government's sole argument for an affirmance is that

Romero waived his claim of error.           See United States v. Corbett,

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870 F.3d 21, 30 (1st Cir. 2017) ("Although a forfeited claim will

be reviewed for plain error, 'a waived issue ordinarily cannot be

resurrected on appeal.'" (quoting United States v. Walker, 538

F.3d 21, 23 (1st Cir. 2008))).        The crux of the argument is that

by not just failing to object but also affirmatively conceding to

the district court that the PSR's 46-57 month Guidelines range

calculation was "correct," Romero knowingly relinquished his right

to challenge the applicability of any underlying enhancement. Cf.

United States v. Bauzó-Santiago, 867 F.3d 13, 24 (1st Cir. 2017)

(defining waiver as the "intentional relinquishment or abandonment

of a known right").     Romero counters that he never "intended to

proceed   under   an   improperly    calculated   sentencing   guideline

range"; rather, he (like the Probation Office and the prosecution)

simply "missed the inaccuracy" in the PSR.

           We are dubious about the government's waiver rationale.

Sentencing judges routinely ask defendants whether they have any

objections to the contents of their presentence report, including

in particular the calculated Guidelines range.      Where the Probation

Office has committed an error in preparing a presentence report

that was not then caught by either the prosecution or defense

counsel, treating the defendant's general concession that he has

no objections and that the calculated Guidelines range is "correct"

as a waiver of his right to challenge a subsequently identified

error on appeal would undermine our law's distinction between

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forfeiture and waiver.        Cf. Rosales-Mireles, 138 S. Ct. at 1907

(emphasizing that the Court "'routinely remands' cases involving

inadvertent or unintentional errors, including sentencing errors,"

for plain error review (quoting Hicks v. United States, 137 S. Ct.

2000, 2000 (2017) (Gorsuch, J., concurring))); id. at 1904 (deeming

it "unsurprising . . . that 'there will be instances when a

district court's sentencing of a defendant within the framework of

an incorrect Guidelines range goes unnoticed' by the parties as

well, which may result in a defendant raising the error for the

first time on appeal" (quoting Molina-Martinez v. United States,

136 S. Ct. 1338, 1342-43 (2016))).

          In   any   event,    we   need    not   decide   whether   Romero's

representations to the court amounted to waiver, for even if they

did, we would excuse the waiver in the interest of justice.

See United States v. Torres-Rosario, 658 F.3d 110, 116 & n.2 (1st

Cir. 2011) (excusing waiver where it "would likely mean a much

longer and arguably unjustified [prison] term" for the defendant

and "there is no reason to think that the government would be

unfairly prejudiced by reopening the issue").              In this case, all

parties involved -- the Probation Office, the prosecution, and

defense counsel -- simply missed the significance of Application

Note 3 to U.S.S.G. § 2L1.2.          As a result, Romero's Guidelines

range, which the court expressly took into account at sentencing,

was more than a year higher than it should have been. In addition,

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the   government   acknowledges   that     it    "would   not   be   unfairly

prejudiced    if   Romero's   sentencing    were     reopened."      Because

resentencing will occur before the same judge, there is no risk of

any gain by strategic sandbagging.              Under these circumstances,

resentencing is clearly warranted. Accordingly, the judgment is

             Vacated and Remanded.




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