     Case: 16-41667       Document: 00514284434         Page: 1    Date Filed: 12/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 16-41667                               FILED
                                                                         December 22, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

v.

MARCELINO CHAN-XOOL,

               Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:16-CR-1133-1




Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant Marcelino Chan-Xool appeals his sentence. He argues that
the district court plainly erred by assessing an additional criminal-history
point under Guideline § 4A1.1(e) in its Guidelines calculation. We AFFIRM.


       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
      Case: 16-41667     Document: 00514284434     Page: 2    Date Filed: 12/22/2017



                                  No. 16-41667
                                        I.
       In 2016, Marcelino Chan-Xool pleaded guilty to illegal reentry. In the
presentence report (PSR), the probation officer assessed an additional
criminal-history point pursuant to United States Sentencing Guidelines
§ 4A1.1(e) because Chan-Xool had two prior convictions—one for kidnapping
and one for voluntary manslaughter—that were treated as a single sentence.
In 2006, Chan-Xool had been sentenced to serve one year and eight months for
kidnapping in violation of California Penal Code section 207(a) and six years
for    voluntary       manslaughter   in     violation   of     California    Penal
Code section 192(a). Chan-Xool was to serve these sentences consecutively.
The probation officer assessed three criminal-history points for these two
sentences, because they were imposed on the same date and the offenses were
listed in the same charging instrument. The probation officer then assessed
an additional criminal-history point pursuant to Guideline § 4A1.1(e).
       This total of four criminal-history points produced a criminal-history
category of III. Along with the offense level and a one-level decrease for
acceptance of responsibility, this category produced an advisory sentencing
range of twenty-four to thirty months.           The district court adopted this
recommended Guidelines range. The district court then sentenced Chan-Xool
within the Guidelines range to thirty months in custody and imposed a $100
special assessment.
       In arriving at the thirty-month sentence, the district court discussed the
“serious” nature of Chan-Xool’s prior conduct that “not only caused harm to a
family, but resulted in the loss of life to a member of the community.” The
district court noted that it would stay within the Guidelines range, although
“with a lot of reservation.” Because of Chan-Xool’s prior conduct, the district




                                        2
    Case: 16-41667    Document: 00514284434     Page: 3   Date Filed: 12/22/2017



                                 No. 16-41667
court determined that a sentence at the high end of the Guidelines range was
necessary. Chan-Xool timely filed a notice of appeal.
                                       II.
      Because Chan-Xool failed to object to his criminal-history score, his claim
on appeal is subject to plain-error review. See United States v. Jasso, 587 F.3d
706, 709 (5th Cir. 2009) (holding that because defendant failed to preserve the
alleged error in the district court, plain-error review rather than de novo
review applied). Under plain-error review, we consider whether there is: (1) a
legal error; (2) that is “clear or obvious rather than subject to reasonable
dispute”; (3) that affected the appellant’s substantial rights; and (4) that the
court may use its discretion to remedy because the first three prongs are
satisfied and the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135
(2009) (citations omitted).
                                      III.
                                       A.
      Chan-Xool argues that the district court plainly erred when it assessed
an additional criminal-history point based on Chan-Xool’s sentence for
kidnapping and voluntary manslaughter.        “[W]e first inquire whether the
district court’s imposition of the enhancement was erroneous and, if so,
whether the error was plain (i.e., clear or obvious).” Jasso, 587 F.3d at 709
(footnote omitted) (citation omitted). In determining a defendant’s criminal-
history category, a probation officer is to add three points for each prior
sentence of imprisonment that exceeds one year and one month. U.S.S.G.
§ 4A1.1(a). “[P]rior sentences are counted separately unless (A) the sentences
resulted from offenses contained in the same charging instrument; or (B) the
sentences were imposed on the same day.”       U.S.S.G. § 4A1.2(a)(2). If either


                                       3
     Case: 16-41667       Document: 00514284434          Page: 4     Date Filed: 12/22/2017



                                       No. 16-41667
situation applies, the probation officer is to treat multiple prior sentences as a
single sentence. Id. Finally, the probation officer is to add one point for each
prior sentence resulting from a conviction of a crime of violence that did not
receive any points because it was treated as a single sentence.                      U.S.S.G.
§ 4A1.1(e). The probation officer may add up to three additional points under
Guideline § 4A1.1(e). Id.
       Here, the probation officer correctly treated Chan-Xool’s two prior
sentences as a single sentence, because they were imposed on the same date
and the offenses were listed in the same charging instrument. The probation
officer correctly added three points for this prior sentence. It is undisputed
that Chan-Xool’s conviction for voluntary manslaughter under California
Penal Code section 192(a) counts as a crime of violence. U.S.S.G. § 4B1.2(a)(2);
see United States v. Bonilla-Montenegro, 331 F.3d 1047, 1050–52 (9th Cir.
2003) (holding that voluntary manslaughter under section 192(a) counts as an
enumerated crime of violence). However, because the manslaughter conviction
already had received additional criminal-history points, the probation officer
correctly assessed an additional point only if the kidnapping conviction also
counts as a crime of violence.
       We have held (and the government does not contest) that kidnapping in
violation of California Penal Code section 207(a) is not a crime of violence. 1
United States v. Moreno-Florean, 542 F.3d 445, 452–56 (5th Cir. 2008) (holding



       1 Under the Guidelines, “The term ‘crime of violence’ means any offense under federal
or state law, punishable by imprisonment for a term exceeding one year, that—
       (1) has as an element the use, attempted use, or threatened use of physical force
       against the person of another, or
       (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex
       offense, robbery, arson, extortion, or the use or unlawful possession of a firearm
       described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).”
U.S.S.G. § 4B1.2(a).


                                               4
    Case: 16-41667      Document: 00514284434        Page: 5    Date Filed: 12/22/2017



                                    No. 16-41667
that violating section 207(a) is not a crime of violence for purposes of U.S.S.G.
§ 2L1.2); see also United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir.
2002) (holding that the definitions of “crime of violence” in U.S.S.G. §§ 2L1.2
and 4B1.2 are “substantially the same and should be consistently construed”).
      The government argues, however, that because Chan-Xool admitted
violating California’s section 12022.7(a) sentencing enhancement 2 as part of
his guilty plea to the charge of kidnapping, he was actually convicted of a more
specific crime that did include the use of physical force as an element. Chan-
Xool counters that section 12022.7(a) is a sentencing enhancement but not an
element of the crime of kidnapping for which he was convicted.
      The government’s argument suffers from two key flaws. First, a person
can violate California’s section 12022.7(a) sentencing enhancement by acting
with mere negligence, and this shows that violating section 12022.7(a) is not a
crime of violence. See Ramirez v. Lynch, 810 F.3d 1127, 1135 n.2 (9th Cir.
2016) (noting in dicta that “section 12022.7(a) does not meet the definition of a
crime of violence . . . , as it has clearly been applied to defendants who
committed crimes recklessly or negligently”). Moreover, the Supreme Court
has stated that the phrase “use of physical force” in the definition of a crime of
violence “most naturally suggests a higher degree of intent than negligent or
merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see Voisine
v. United States, 136 S. Ct. 2272, 2279–80 (2016) (holding that the definition
of a “misdemeanor crime of violence” “embraces reckless conduct” as well as
knowing or intentional conduct).        Because section 12022.7(a) can apply to




      2  The statutory enhancement reads: “(a) Any person who personally inflicts great
bodily injury on any person other than an accomplice in the commission of a felony or
attempted felony shall be punished by an additional and consecutive term of imprisonment
in the state prison for three years.” Cal. Penal Code § 12022.7(a).

                                           5
     Case: 16-41667       Document: 00514284434         Page: 6    Date Filed: 12/22/2017



                                      No. 16-41667
merely negligent conduct, it cannot qualify as an element involving a use of
force that must be at least reckless.
       Second, the government’s arguments lack support in the caselaw. The
government cites People v. Pangan, 152 Cal. Rptr. 3d 632 (Cal. Ct. App. 2013),
but this case centers on the calculation of a restitution award and does not hold
that a sentencing enhancement constitutes an element of an offense. 152 Cal.
Rptr. 3d at 633. Moreover, the fact that California statutory enhancements
require the reasonable-doubt standard of proof does not show that an
enhancement is an element of an offense. The government provides no case
showing that admitting to violating a statutory enhancement in conjunction
with one’s guilty plea (as the government alleges Chan-Xool did) makes the
enhancement an element of the underlying offense. Although the government
cites People v. Black, 113 P.3d 534, 545 (Cal. 2005), judgment vacated sub nom.
Black v. California, 549 U.S. 1190 (2007), in an attempt to equate statutory
enhancements with elements of an offense, this case is inapt. Neither it nor
any other case that the government cites shows that enhancements can qualify
as elements for the purpose of transforming what is not a crime of violence into
a crime of violence. 3
       The government argues in the alternative that the district court did not
commit plain error because it is unclear whether both prior convictions that
are treated as a single sentence have to be crimes of violence for purposes of
assessing an additional criminal-history point. However, the commentary on


       3 This is not the first time the government has argued that a statutory enhancement
can turn what is not a crime of violence into a crime of violence. In Ramirez v. Lynch, the
Ninth Circuit noted, “Ramirez received a statutory sentence enhancement under California
Penal Code section 12022.7(a), which is reflected in the abstract of judgment, and which the
government argues establishes that Ramirez was convicted of a crime of violence once the
modified categorical approach is applied.” 810 F.3d 1127, 1135 n.2 (9th Cir. 2016). The Ninth
Circuit declined to rule on the precise question, but noted that the sentencing enhancement
“is not a ‘crime’ of which Ramirez was ‘convicted.’” Id.

                                             6
     Case: 16-41667       Document: 00514284434          Page: 7     Date Filed: 12/22/2017



                                       No. 16-41667
Guideline § 4A1.1(e) speaks of “convictions” for crimes of violence, showing that
both convictions must be crimes of violence to justify assessing a single
criminal-history point under Guideline § 4A1.1(e). U.S.S.G. § 4A1.1(e) cmt.
n.5. The commentary states:
       In a case in which the defendant received two or more prior sentences as
       a result of convictions for crimes of violence that are treated as a single
       sentence (see § 4A1.2(a)(2)), one point is added under § 4A1.1(e) for each
       such sentence that did not result in any additional points under
       § 4A1.1(a), (b), or (c).
U.S.S.G. § 4A1.1 cmt. n.5 (emphasis added).                    This language from the
commentary is not obscure. The PSR itself speaks of multiple convictions for
crimes of violence when determining Chan-Xool’s criminal-history score,
directly implying that Chan-Xool’s kidnapping offense is a crime of violence. 4
       The government seeks to support its alternate argument by suggesting
that criminal-history calculations depend on whether prior sentences were to
be served consecutively or concurrently.                The Guidelines make no such
distinction. The fact that Chan-Xool was to serve his sentences consecutively
is irrelevant to whether the district court should have assessed an additional
criminal-history point under Guideline § 4A1.1(e). A novel argument, made in
the teeth of applicable precedent, does not show lack of clarity. Under Moreno-
Florean, the district court plainly erred by assessing an additional criminal-
history point based on Chan-Xool’s prior convictions despite the fact that
kidnapping under section 207(a) is not a crime of violence. See United States
v. Reyes-Ochoa, 861 F.3d 582, 588–89 (5th Cir. 2017) (holding that the district



       4 The PSR states: “If a defendant received two or more prior sentences as a result of
convictions for crimes of violence that are counted as a single sentence, one point is added for
each sentence that did not result in any additional points under U.S.S.G. § 4A1.1(a), (b), or
(c), and a total of up to three points may be added, pursuant to U.S.S.G. § 4A1.1(e). In this
case, the defendant was convicted of kidnapping and voluntary manslaughter . . . that were
counted as a single sentence. Thus, one point is added.” (emphasis added).

                                               7
    Case: 16-41667    Document: 00514284434      Page: 8   Date Filed: 12/22/2017



                                 No. 16-41667
court plainly erred by imposing a crime-of-violence enhancement based on
prior convictions for offenses that were not crimes of violence).
                                       B.
      Given that the assessment of an additional criminal-history point was
error and that the error was plain, we next consider whether the error affected
the defendant’s substantial rights. Puckett, 556 U.S. at 135. Had the district
court only assessed three criminal history points, Chan-Xool’s criminal-history
category would have been II, and the advisory Guidelines range would have
been twenty-one to twenty-seven months. As discussed above, the district
court sentenced Chan-Xool to thirty months in custody based on an advisory
sentencing range of twenty-four to thirty months.          While the additional
criminal-history point produced an upper Guidelines range only three months
higher than the upper Guidelines range without the additional point, the
length of the sentence is not dispositive. In Molina-Martinez v. United States,
136 S. Ct. 1338 (2016), the Supreme Court held that “[w]hen a defendant is
sentenced under an incorrect Guidelines range—whether or not the
defendant’s ultimate sentence falls within the correct range—the error itself
can, and most often will, be sufficient to show a reasonable probability of a
different outcome absent the error.” 136 S. Ct. at 1345. Moreover, the district
court’s stated reluctance to stay within the Guidelines range does not show
that the court based the thirty-month sentence “on factors independent of the
Guidelines.” Id. at 1347. The error here affected Chan-Xool’s substantial
rights.
                                       C.
      We exercise our discretion under the fourth prong of the plain-error
analysis only if the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Puckett, 556 U.S. at 135. “[W]e do not view


                                        8
    Case: 16-41667     Document: 00514284434      Page: 9   Date Filed: 12/22/2017



                                  No. 16-41667
the fourth prong as automatic if the other three prongs are met.” United States
v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc). Rather, “we
look to ‘the degree of the error and the particular facts of the case’ to determine
whether to exercise our discretion.” United States v. Prieto, 801 F.3d 547, 554
(5th Cir. 2015) (citations omitted).
      We have chosen not to exercise our fourth-prong discretion when much
greater deviations than three-month deviations were involved.            See, e.g.,
United States v. Chavez-Hernandez, 671 F.3d 494, 496–97, 501 (5th Cir. 2012)
(affirming an improperly enhanced sentence that exceeded the high end of the
correct Guidelines range by twenty-three months); United States v. Jones, 489
F.3d 679, 682 (5th Cir. 2007) (affirming sentence when the district court had
departed twenty-three months above the high end of the Guidelines range
based on its improper consideration of defendant’s arrest record); see also
United States v. Ellis, 564 F.3d 370, 378–79 (5th Cir. 2009) (“[E]ven if an
increase in a sentence be seen as inevitably ‘substantial’ in one sense it does
not inevitably affect the fairness, integrity, or public reputation of judicial
process and proceedings.”). Here, because of the serious nature of Chan-Xool’s
prior offenses and the three-month increase in the length of his sentence, we
determine that the error does not seriously affect the fairness, integrity, or
public reputation of judicial proceedings. See United States v. Wikkerink, 841
F.3d 327, 339 (5th Cir. 2016) (examining the district court’s statements about
defendant’s criminal history and concluding that the district court’s error did
not merit correction under the fourth prong).
                                       IV.
      Therefore, we AFFIRM the judgment of the district court.




                                        9
