     Case: 17-30451      Document: 00514720932         Page: 1    Date Filed: 11/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-30451                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                      November 13, 2018
UNITED STATES OF AMERICA,
                                                                         Lyle W. Cayce
              Plaintiff - Appellee                                            Clerk


v.

QUINN P. REED,

              Defendant - Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CR-79-1


Before STEWART, Chief Judge, and DENNIS and WILLETT, Circuit Judges.
PER CURIAM:*
       Quinn P. Reed was found guilty of possession with intent to distribute
marijuana and possession of a firearm by a convicted felon. He was sentenced
to 180 months in prison. Reed contends for the first time on appeal that the
district court erred in miscalculating his Guidelines sentence. Concluding that
the district court committed reversible plain error, we VACATE his sentence
and REMAND for resentencing.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-30451     Document: 00514720932    Page: 2   Date Filed: 11/13/2018



                                 No. 17-30451
                            I.    BACKGROUND
      Quinn P. Reed was found guilty of possession with intent to distribute
marijuana in violation of 21 U.S.C. § 841(a) (“Count One”) and possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (“Count Two”).
The presentence report (“PSR”) characterized Reed as a career offender under
U.S.S.G. § 4B1.1 with a criminal history category of VI. Section 4B1.1 provides
an alternative offense level for a defendant convicted of a crime of violence or
controlled substance offense if the defendant has two or more convictions for
such an offense. This offense level controls if it is higher than another
applicable offense level.
      The § 4B1.1 offense level is determined by the statutory maximum
sentence for the triggering offense or conviction. Reed’s offense level under
§ 4B1.1 should have been 17, because the maximum sentence for Count One
was five years. 21 U.S.C. § 841(b)(1)(D). The PSR, however, incorrectly
represented that the maximum sentence for Count One was twenty years.
Reed’s base offense level was thus erroneously determined to be 32 under
§ 4B1.1(b). Because this offense level was higher than Reed’s offense level
under U.S.S.G. § 2K2.1, the section governing Count Two, it controlled his
sentencing Guidelines range. Reed’s total offense level of 32 and his criminal
history category of VI produced an advisory Guidelines range of 210 to 262
months of imprisonment. As this range was greater than the 180-month
statutory maximum, the Guidelines sentence became 180 months.
      Had the correct statutory maximum for Count One been used, Reed’s
offense level under § 4B1.1(b) would have been 17, so his § 2K2.1 offense level
of 28 would have controlled. Reed’s correct offense level would have produced
an advisory Guidelines range of 140 to 175 months of imprisonment––five to
forty months below the ultimate Guidelines sentence of 180 months.


                                        2
    Case: 17-30451     Document: 00514720932      Page: 3   Date Filed: 11/13/2018



                                   No. 17-30451
      At sentencing, the Government urged the court to impose the 180-month
statutory maximum given Reed’s criminal history. The PSR set forth that Reed
had eleven prior convictions and fifteen prior arrests. Reed’s release on
probation or parole had been revoked seven times, and he had absconded from
supervision or failed to appear for court on three other occasions. The district
court imposed the 180-month term.
                             II.    DISCUSSION
      Because Reed did not object to the district court’s miscalculation of his
offense level, our review is for plain error. United States v. Sanchez-Arvizu, 893
F.3d 312, 315 (5th Cir. 2018). “Federal Rule of Criminal Procedure 52(b)
provides that a court of appeals may consider errors that are plain and affect
substantial rights, even though they are raised for the first time on appeal.”
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1903 (2018). Reed must show
“(1) an error or defect not affirmatively waived; (2) that is ‘clear or obvious,
rather than subject to reasonable dispute’; and (3) that affected his substantial
rights.” Sanchez-Arvizu, 893 F.3d at 315 (quoting United States v. Prieto, 801
F.3d 547, 550 (5th Cir. 2015)). “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.’” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (quoting United States v. Olano, 507 U.S. 725, 732 (1993) (brackets
omitted)).
      The Government and Reed agree that all four prongs of plain error
review are satisfied in this case and submit that this court should vacate and
remand for resentencing.
      Reed has not waived his right to seek relief from the district court’s error.
He “forfeited the claim of error through his counsel’s failure to raise the
argument in the District Court.” Puckett v. United States, 556 U.S. 129, 138
                                        3
    Case: 17-30451     Document: 00514720932     Page: 4     Date Filed: 11/13/2018



                                  No. 17-30451
(2009) (emphasis omitted). “Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.” Olano, 507 U.S.
at 733 (quotation omitted). The error, moreover, is plain and “clear from the
language of the Guidelines.” United States v. Espinoza, 677 F.3d 730, 736 (5th
Cir. 2012). The district court erred in relying on a mistakenly-inflated offense
level under § 4B1.1 rather than the correct offense level under § 2K2.1. Reed
thus satisfies the first two prongs of plain error review.
      To satisfy the third prong, Reed 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. Gonzalez, 484 F.3d 712, 715 (5th
Cir. 2008) (quotation and brackets 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, 136 S. Ct. at 1345. “Absent unusual
circumstances, [a defendant] will not be required to show more.” Id. at 1347.
Because of the district court’s error, Reed was subject to a Guidelines range of
210 to 262 months of imprisonment, which was capped by statute at 180
months. Had the district court relied upon the correct offense level, the
applicable Guidelines range would have been 140 to 175 months. While “[t]here
may be instances when, despite application of an erroneous Guidelines range,
a reasonable probability of prejudice does not exist,” this is not such an
instance. Molina-Martinez, 136 S. Ct. at 1346. The district court imposed the
only Guidelines sentence available. There was no range for the court to
consider, and “the record is silent as to what the district court might have done
had it considered the correct Guidelines range.” Id. at 1347.
      Because the first three prongs of plain error review have been
established, we consider whether to apply our discretion to correct the district
                                        4
    Case: 17-30451        Document: 00514720932   Page: 5   Date Filed: 11/13/2018



                                   No. 17-30451
court’s error. “Although Rule 52(b) is permissive, not mandatory, it is well
established that courts should correct a forfeited plain error that affects
substantial rights if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Rosales-Mireles, 138 S. Ct. at 1906
(quotations omitted). A sentencing miscalculation that meets the first three
requirements of plain error review will, in the ordinary case, call “for a court
of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s
sentence” unless “countervailing factors” indicate otherwise. Id. at 1903, 1909.
      A defendant’s criminal history is not a countervailing factor. Id. at 1910
n.5; see also United States v. Urbina-Fuentes, 900 F.3d 687, 698–99 (5th Cir.
2018). Reed’s criminal history “is relevant to the District Court’s determination
of an appropriate sentence.” Rosales-Mireles, 138 S. Ct. at 1910 n.5. But it does
not bear on our use of discretion––“[i]t does not help explain whether the plain
procedural error in [Reed’s] sentencing proceedings . . . seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
      “The size of the sentencing disparity here . . . also does not amount to the
kind of countervailing factor that should justify our refusal to step in to correct
the error.” Urbina-Fuentes, 900 F.3d at 699–700. The correct sentencing range
for Reed was 140 to 175 months of imprisonment––five to forty months less
than the 180-month Guidelines sentence the district court considered and
imposed. “Rosales-Mireles granted relief for a narrower disparity,” Id. at 699,
and no other countervailing factors counsel us against exercising our discretion
and granting relief in this case. We thus exercise our discretion to correct the
district court’s error.


                                  III.   CONCLUSION
      We VACATE Reed’s sentence and REMAND to the district court for
resentencing.
                                         5
