     Case: 11-40576     Document: 00511639146         Page: 1     Date Filed: 10/20/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 20, 2011

                                     No. 11-40576                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

HIPOLITO SEGURA-SANCHEZ

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-99-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Hipolito Segura-Sanchez appeals his sentence and conviction, arguing that
the district court erred by: (1) incorrectly applying a sentencing enhancement,
and (2) entering a judgment that improperly stated that Segura-Sanchez was
convicted under 8 U.S.C. § 1326(b)(2) instead of 8 U.S.C. § 1326(b)(1). Because
we conclude that the district court plainly erred in imposing Segura-Sanchez’s
sentence, we VACATE the sentence and REMAND for resentencing. Upon


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40576

remand, the district court should correct the record to reflect that he was
sentenced under1326(b)(1). In all other respects, his conviction is AFFIRMED.
                I. FACTS AND PROCEDURAL HISTORY
      Segura-Sanchez pleaded guilty to illegally reentering the United States in
violation of 8 U.S.C. §§ 1326(a) and (b). Segura-Sanchez received a base offense
level of eight plus an eight-level enhancement for a prior conviction for evading
arrest with a motor vehicle, which the presentence report (“PSR”) characterized
as an aggravated felony.     With a three-level reduction for acceptance of
responsibility, Segura-Sanchez’s total offense level was 13. The United States
Sentencing Guidelines (the “Guidelines”) state that the range of imprisonment
for this offense level, combined with a Criminal History Category of IV, was 24
to 30 months. Segura-Sanchez did not object to the PSR, nor did he object at the
sentencing hearing to the enhancement.
      The district judge sentenced Segura-Sanchez to 24 months of
imprisonment and three years of supervised release. In announcing Segura-
Sanchez’s sentence, the district judge stated that:
      The Court has chosen to sentence within the advisory guidelines at
      the bottom of the guidelines, observing that the Court [sic] has one
      conviction for assault, one conviction for illegal reentry, three
      convictions for DWI, has been deported two times and granted a
      voluntary return for two times. The Defendant understands well
      that immigration offenses are penal and have serious consequences.
      And the Defendant is sentenced at the bottom end of the guidelines
      to reflect this serious offense.
Segura timely appealed his conviction and sentence.
           II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction over this case pursuant to 18 U.S.C.
§ 3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
      Because Segura-Sanchez did not object to the PSR, nor did he object at the
sentencing hearing, our review is for plain error.        See United States v.


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                                    No. 11-40576

Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). Plain error requires a showing
that: “(1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject
to reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights,
which in the ordinary case means’ it ‘affected the outcome of the district court
proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Marcus, 130 S. Ct. 2159,
2164 (2010) (quoting Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)).
                                III. DISCUSSION
      Here, the parties agree, and our analysis confirms, that Segura-Sanchez
met the first two prongs of the plain error analysis. The statute defines the term
“aggravated felony” to include “a crime of violence (as defined in section 16 of
Title 18, but not including a purely political offense) for which the term of
imprisonment [is] at least one year . . . .” 8 U.S.C. § 1101(a)(43)(F). Although
we have held that a Texas conviction for evading arrest with a motor vehicle is
a “crime of violence,” United States v. Sanchez-Ledezma, 630 F.3d 447, 451 (5th
Cir.), cert. denied, 131 S. Ct. 3024 (2011), Segura-Sanchez was not sentenced to
a term of imprisonment that was “at least one year,” 8 U.S.C. § 1101(a)(43)(F).
Therefore, Segura-Sanchez’s Texas conviction for evading arrest with a motor
vehicle was not an “aggravated felony” as defined by 8 U.S.C. § 1101(a)(43).
Because there was error and it was plain, we must proceed to the third prong of
the plain error analysis: whether the miscalculation of the Guidelines range
affected Segura-Sanchez’s substantial rights.
      An error affects a defendant’s substantial rights if the defendant “can 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. John,
597 F.3d 263, 285 (5th Cir. 2010) (internal quotations and citations omitted).
Instead of receiving an eight-level enhancement, Segura-Sanchez should have
only received a four-level enhancement for a prior felony conviction for a total

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                                  No. 11-40576

offense level of 10. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(D)
(2010). Combined with a Criminal History Category of IV, the correct guidelines
range was 15 to 21 months. Id. ch. 5, pt. A, sentencing table.
      The correct and incorrect guidelines ranges do not overlap (15 to 21
months, compared to 24 to 30 months), and Segura-Sanchez received a sentence
that was higher than the maximum sentence recommended by the correct
Guidelines. Our prior decisions hold that where the Guidelines ranges do not
overlap and the defendant received a sentence that was above the correct
Guidelines range, the defendant’s substantial rights have been violated. See
John, 597 F.3d at 285; United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.
2005); United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).              Cf.
Mudekunye, 646 F.3d at 290-91 (concluding that even where the correct and
incorrect sentencing ranges overlapped, the defendant’s substantial rights were
affected because the sentence imposed was above the correct Guidelines range
and the judge did not indicate an intent to sentence the defendant to an above-
Guidelines sentence).    The Government relies heavily on our unpublished
opinion in United States v. Gaither, No. 10-51064, 2011 U.S. App. LEXIS 15586
(5th Cir. July 27, 2011), to show that Segura-Sanchez’s substantial rights were
not affected. In Gaither, however, no facts indicated that the district judge
intended to sentence the defendant within the Guidelines, so the court held that
he failed to meet his burden of showing that his substantial rights were affected.
Id. at *4. In contrast, the district judge in this case twice mentioned his intent
to sentence Segura-Sanchez to the “bottom end” of the Guidelines range.
      Here, the difference between the potential “bottom end” sentence Segura-
Sanchez might have received under the correct Guidelines range and the
“bottom end” sentence he received under the incorrect range is nine months.
The difference between the intended “bottom end” sentence of 24 months he
received and the top of the correct Guidelines range is three months. On this

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                                  No. 11-40576

record there is no indication that the district judge would have given the same
sentence had he properly calculated the sentencing range. We conclude that
Segura-Sanchez successfully showed “a reasonable probability that, but for the
district court’s misapplication of the Guidelines, [he] would have received a
lesser sentence.” John, 597 F.3d at 285.
      Finally, the fourth prong of the plain error analysis gives us discretion to
correct the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”     Marcus, 130 S. Ct. at 2164 (internal
quotation marks and citations omitted). Here, the non-overlapping ranges, the
indication of an intent to sentence at the “bottom end,” and the fact that there
was a nine-month difference between the “bottom end” of the correct and
incorrect Guidelines ranges, “warrants the exercise of our discretion to correct
the error.” Mudekunye, 646 F.3d at 291; see also Villegas, 404 F.3d at 365
(“[B]ecause the district court’s error clearly affected [the defendant’s] sentence,
we also find that the error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.”). We reject the Government’s arguments
that the unpublished decision in Gaither counsels this court against exercising
its discretion to reduce Segura-Sanchez’s sentence because of his prior
convictions. The defendant’s convictions in Gaither were much more severe and
extensive than Segura-Sanchez’s offenses; therefore, Gaither is inapposite. We
conclude that Segura-Sanchez showed plain error; accordingly, we VACATE his
sentence and remand this case to the district court for resentencing and
correction of the record to reflect 1326(b)(1) rather than 1326(b)(2) as the section
under which he was sentenced.
      The conviction is AFFIRMED as CORRECTED; the sentence is VACATED
and REMANDED.




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