     Case: 17-40338      Document: 00514325619         Page: 1    Date Filed: 01/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-40338
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 29, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

OBDULIA LUCIO-GUEVARA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:16-CR-1032-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Citing United States v. Franco-Galvan, 864 F.3d 338 (5th Cir. 2017),
Obdulia Lucio-Guevara appeals the district court’s assessment of the eight-
level enhancement under U.S.S.G. § 2L1.2(b)(2)(B). That enhancement was
applied based on the sentence imposed for Lucio-Guevara’s 2006 conviction for
transportation of an undocumented alien within the United States by means
of a motor vehicle for private financial gain.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40338    Document: 00514325619    Page: 2   Date Filed: 01/29/2018


                                No. 17-40338

      Lucio-Guevara is correct that the district court, for purposes of
§ 2L1.2(b)(2)(B), should have considered only the 18-month sentence she
received in that case prior to her first order of deportation and not the post-
deportation six-month sentence later imposed upon revocation of her
supervised release. See Franco-Galvan, 864 F.3d at 340-43. The district court
thus erred in applying § 2L1.2(b)(2)(B) and should have instead applied the
six-level enhancement under § 2L1.2(b)(2)(C). See § 2L1.2(b)(2)(B), (C).
      The district court did not consider the correct guidelines range in
selecting Lucio-Guevara’s sentence. Given that the district court imposed a
sentence at the bottom of the incorrect range and did not give any indication
that it would have otherwise imposed the same sentence, the Government has
not demonstrated that the error was harmless. See United States v. Ibarra-
Luna, 628 F.3d 712, 713-14, 718-19 (5th Cir. 2010).
      Accordingly, we VACATE the sentence and REMAND to the district
court for resentencing.




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