     Case: 19-51171       Document: 00515468968         Page: 1    Date Filed: 06/26/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals
                                    No. 19-51171                                Fifth Circuit

                                  Summary Calendar                            FILED
                                                                          June 26, 2020
                                                                         Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff−Appellee,

versus

JAMES LEE PLESKAC,

                                                  Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                               No. 3:07-CR-1765-1




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

       James Pleskac appeals his 30-month sentence imposed upon revocation



       *Pursuant to 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 CIRCUIT RULE 47.5.4.
    Case: 19-51171     Document: 00515468968      Page: 2   Date Filed: 06/26/2020


                                  No. 19-51171

of supervised release. He maintains that it is an illegal sentence because it
exceeds the statutory maximum, and he requests that this court either modify
the order or vacate and remand for resentencing. The government agrees that
the sentence exceeds the statutory maximum and should be corrected.

      A sentence that exceeds the statutory maximum is illegal. United States
v. Vera, 542 F.3d 457, 459 (5th Cir. 2008). We review de novo revocation sen-
tences that are alleged to exceed the statutory maximum notwithstanding the
defendant’s failure to preserve the issue for appellate review. United States v.
Oswalt, 771 F.3d 849, 850 (5th Cir. 2014); see Vera, 542 F.3d at 459.

      Pleskac’s underlying offense of transporting aliens for private financial
gain was punishable by imprisonment of not more than 10 years, see 8 U.S.C.
§ 1324(a)(1)(A)(ii), (B)(i), which is a Class C felony, see 18 U.S.C. § 3559(a)(3).
The authorized imprisonment after revoking supervised release for a Class C
felony is not more than two years. 18 U.S.C. § 3583(e)(3). Section 7B1.4(b)(1)
of the Sentencing Guidelines instructs that “[w]here the statutorily authorized
maximum term of imprisonment . . . is less than the minimum of the applicable
range, the statutorily authorized maximum term shall be substituted for the
applicable range.” U.S.S.G. § 7B1.4(b)(1).

      The district court nevertheless determined that the applicable policy
guidelines range was 30 to 37 months and imposed a sentence within that
range. The court therefore erred in calculating the range and in imposing a
sentence that exceeds the maximum. See United States v. Mathena, 23 F.3d
87, 90−93 (5th Cir. 1994) (noting that in imposing a revocation sentence the
court is directed to consider, inter alia, the nonbinding policy statements found
in Chapter 7 of the Sentencing Guidelines). Accordingly, the sentence imposed
upon revocation is VACATED and REMANDED for resentencing.



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