     Case: 11-20404     Document: 00511737201         Page: 1     Date Filed: 01/26/2012




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

                                                                            FILED
                                                                         January 26, 2012
                                     No. 11-20404
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JONATHAN AGUIRRE-ALVA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-208-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jonathan Aguirre-Alva (Aguirre) appeals his 48-
month sentence of imprisonment imposed following his guilty plea conviction
for being an illegal alien in possession of a firearm. Although Aguirre’s plea
agreement contained a waiver of appeal, the government is not seeking to
enforce that provision. Thus, we shall not enforce the waiver provision. See
United States v. Watson, 450 F.3d 184, 185 (5th Cir. 2006).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20404    Document: 00511737201       Page: 2   Date Filed: 01/26/2012

                                   No. 11-20404

      Aguirre contends that he was sentenced in violation of the law because the
district court did not order the probation office to prepare a presentence report
(PSR) in accordance with Federal Rule of Criminal Procedure 32, absent which
he did not have an opportunity to object to the sentencing guidelines range
employed by the district court. The government takes the position that the
district court plainly erred in failing to obtain a presentence report and in failing
to impose a term of supervised release.
      In the district court, neither Aguirre nor the government objected to the
failure to require a PSR prior to sentencing. Therefore, our review is for plain
error. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). The
district court is required to order a presentence investigation and report prior
to sentencing unless the court (1) determines that the information in the record
will enable it to exercise its sentencing authority meaningfully under 18 U.S.C.
§ 3553 and (2) explains its findings on the record. FED. R. CRIM. P. 32(c)(1)(A);
see also U.S.S.G. § 6A1.1, p.s. and comment; United States v. Long, 656 F.2d
1162, 1164-65 (5th Cir. 1981).
      It is not clear from the instant record that the district court had before it
sufficient information to “exercise its sentencing authority meaningfully”
pursuant to FED . R. CRIM. P. 32. By imposing sentence within one week after
Aguirre’s entry of a guilty plea, the district court did not afford the probation
office an adequate opportunity to make a complete presentence investigation and
deprived both parties of the opportunity to review that office’s findings to
determine whether they wished to dispute them. The record does not reflect
whether Aguirre’s estimated guidelines range was properly calculated or
whether his background reflected the existence of mitigating or aggravating
factors. Thus, there was no reliable evidence in the record on which the district
court could have made findings based on the preponderance of the evidence. See
United States v. O’Brien, 130 S. Ct. 2169, 2174 (2010).



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   Case: 11-20404    Document: 00511737201      Page: 3   Date Filed: 01/26/2012

                                  No. 11-20404

      Although, at the time of sentencing, the district court was required to give
reasons for not imposing a term of supervised release, a subsequent amendment
to U.S.S.G. § 5D1.1 provides that, generally, a term of supervised release should
not be imposed on an alien subject to deportation. § 5D1.1(c) (2011). Thus,
failure to impose a term of supervised release at Aguirre’s resentencing would
not result in error. See United States v. Davidson, 984 F2d 651, 655-56 (5th Cir.
1993).
      The district court’s violation of FED. R. CRIM. P. 32(c)(1)(A), however, was
plain error that substantially affected Aguirre’s rights because, as noted above,
it is not clear that his sentencing guideline range was properly calculated or that
the sentence imposed was the result of a meaningful consideration of all relevant
factors. Puckett, 129 S. Ct. at 1429; Long, 656 F.2d at 1164-65. As the district
court erred in applying the Sentencing Guidelines, we must remand for
resentencing. 18 U.S.C. 3742(f)(1). It is not necessary, however, to have a
different district judge resentence Aguirre because there is no indication in the
record that the district court was biased against him or would ignore the
findings of the PSR if they should result in a sentencing guidelines range
different from the estimated range initially considered by the sentencing court.
See Long, 656 F.2d at 1166, n.7; United States v. Robin, 553 F.2d at 10-11 (2d
Cir. 1977) (en banc). The district court’s comments also reflect that it relied
heavily on the seriousness of Aguirre’s possession-of-firearms offense, a relevant
factor in determining the sentence to be imposed. The record does not reflect
that returning the case to the same district judge who initially sentenced
Aguirre would give rise to an appearance of injustice. Id.
      Accordingly, the sentence imposed is vacated, and the case is remanded
to the district court for resentencing before the same district court judge after
preparation of a PSR, unless on remand the sentencing judge should reassign
this case to another section of the court for reasons of his own.
      SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

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