     Case: 16-40920         Document: 00513924329          Page: 1     Date Filed: 03/23/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                         No. 16-40920                                FILED
                                                                               March 23, 2017

Consolidated With 16-40921                                                      Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff–Appellee,

v.

FRANCISCO GARCIA-VAZQUEZ,

                                                     Defendant–Appellant.


                     Appeals from the United States District Court
                          for the Southern District of Texas
                               USDC No. 5:15-CR-1260-1


Before JONES and OWEN, Circuit Judges, and ENGELHARDT ∗, District
Judge.

PER CURIAM: **
       Francisco Garcia-Vazquez appeals his sentences for reentering the
United States illegally and violating a condition of his supervised release. He
contends that the district court erred by denying a downward variance to


       ∗
           District Judge of the Eastern District of Louisiana, sitting by designation.

       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 16-40920
                                c/w No. 16-40921

account for a proposed amendment to the Sentencing Guidelines because the
court erroneously believed it lacked the authority to issue such a variance.
Plain error review applies to the forfeited objection. See United States v.
Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). Garcia-Vazquez must show an
error that is clear or obvious that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court
has the discretion to correct the error but should do so only if the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       The record does not support Garcia-Vazquez’s claim that the district
court misapprehended its authority to vary from the Guidelines. Defense
counsel made a series of vague comments at sentencing about proposed
guidelines that would benefit Garcia-Vazquez.         Counsel did not request a
downward variance to obtain the benefit of the proposed guidelines. Counsel’s
ambiguous statements could be construed instead as implying that the
proposed guidelines should be applied to determine Garcia-Vazquez’s
guidelines range. The district court responded, correctly, that it “must posture
a sentence pursuant to the Guidelines as they exist as of sentencing” in the
absence of ex post facto concerns. United States v. Rodarte-Vasquez, 488 F.3d
316, 322 (5th Cir. 2007). There is no error, plain or otherwise.
       Also for the first time on appeal, Garcia-Vazquez challenges the district
court’s imposition of consecutive sentences. He contends that the court erred
because it believed that it lacked authority to run the sentences concurrently.
Although Garcia-Vazquez requested concurrent sentences, he did not object
when the probation officer and the district court expressed the belief that the
court must impose consecutive sentences. In other words, he did not attempt
to correct the court’s misunderstanding of the law—even though the erroneous

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                                 No. 16-40920
                               c/w No. 16-40921

statement appeared in the presentence report and was repeated by the court
at sentencing. “A party must raise a claim of error with the district court in
such a manner so that the district court may correct itself and thus, obviate
the need for [this court’s] review.” United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009) (quoting United States v. Rodriguez, 15 F.3d 408,
414 (5th Cir. 1994)). “[A]n argument is preserved when the basis for objection
presented below ‘gave the district court the opportunity to address’ the
gravamen of the argument presented on appeal.” United States v. Garcia-
Perez, 779 F.3d 278, 281-82 (5th Cir. 2015) (quoting United States v. Ocana,
204 F.3d 585, 589 (5th Cir. 2000)). Because Garcia-Vazquez failed to preserve
the “specific claim[] of procedural error that he argues in this appeal,” plain
error review applies. Whitelaw, 580 F.3d at 259.
      The district court has “discretion to make its . . . sentence run
concurrently (or partially concurrently) with the previously imposed . . .
sentence for supervised release revocation (although the Commission
recommends that the sentence imposed be consecutive to that for the
revocation).” United States v. Huff, 370 F.3d 454, 465 (5th Cir. 2004); see also
18 U.S.C. § 3584(a), (b). Accordingly, the district court clearly or obviously
erred here in determining that it was required to run the sentences
consecutively.
      Applying the Supreme Court’s recent decision in Molina-Martinez v.
United States, 136 S. Ct. 1338, 1346-48 (2016), we conclude that the error
affected Garcia-Vazquez’s substantial rights.      The district court applied a
cumulative guidelines range of 50 to 67 months (46 to 57 months for the illegal
reentry, plus a consecutive 4 to 10 months for the supervised release violation).
The correct range was 46 months (assuming concurrent sentences at the low
end) to 67 months (assuming consecutive sentences at the high end). The court

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                                  No. 16-40920
                                c/w No. 16-40921

sentenced Garcia-Vazquez to 46 months for the illegal reentry offense and 4
months for the revocation, for a total sentence of 50 months.
      Under the fourth prong of plain error review, we compare the degree of
the error and the particular facts of the case “to other cases that have turned
on the fourth prong.” United States v. Martinez-Rodriguez, 821 F.3d 659, 664
(5th Cir. 2016). A defendant’s sentence at the bottom of an erroneously high
range has weighed in favor of exercising our discretion. See, e.g., id. at 665-66;
United States v. Mazarego-Salazar, 590 F. App’x 345, 350 (5th Cir. 2014) (per
curiam); United States v. Price, 516 F.3d 285, 289 & n.28 (5th Cir. 2008). We
likewise exercise our discretion to correct the error here, although we express
no view on the ultimate issues on resentencing.
      We VACATE the sentence and REMAND for resentencing.




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                                  No. 16-40920
                                c/w No. 16-40921

EDITH H. JONES, Circuit Judge, with whom PRISCILLA R. OWEN, Circuit
Judge, joins, concurring:
      I concur in this decision to remand on plain error review, but it is most
disturbing to note that three different Federal Public Defenders recently
represented defendants at sentencing in three separate cases on appeal—
United States v. Dias, No. 16-40862, 2017 WL 1048069 (5th Cir. Mar. 17, 2017)
(per curiam), and United States v. Villarreal-Garcia, No. 16-40884 (5th Cir.
filed Jun. 20, 2016), being the other two—and every one of them allowed the
visiting district judge to make the same mistake: thinking that superseded
Fifth Circuit law required him to run sentences consecutively. We have had to
review this plain error three times. The discretionary nature of the court’s
decision to sentence consecutively or concurrently in these circumstances is not
a tough issue; it is settled by the plain language of the Guidelines. U.S.
Sentencing Guidelines Manual § 5G1.3(d) & cmt. n.4(C) (U.S. Sentencing
Comm’n 2015); see also United States v. Huff, 370 F.3d 454, 465 (5th Cir. 2004);
United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009). Moreover, two of
these three appeals included yet another issue that had to be reviewed by this
court on plain error.
      The failure of the Federal Public Defender’s office to bring sentencing
errors to the attention of the district court seems to be a virus that is spreading.
It is true that in Dias the Government misrepresented the consecutive
sentencing authority to the district court, while the probation office may have
erred in the other two cases. Any errors on common issues like these are bad
form for all the “experts” involved in sentencing.
       Nevertheless, the Federal Public Defender risks having its clients spend
considerably more time incarcerated than might otherwise have been required,
because clients go to prison while the appellate process winds its way to this

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                                 No. 16-40920
                               c/w No. 16-40921

court. Review on plain error is becoming unpredictable, as all parties in this
process know, resulting in different outcomes for different defendants. Finally,
in the unusual case where resentencing is actually meaningful, given the types
of errors we are now seeing, the public incurs needless costs and there is a
misuse of judicial resources in duplicative proceedings.
      It is time for the FPD and the U.S. Attorney’s office to take the details of
sentencing more seriously in the district court.




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