     Case: 18-40768         Document: 00514990394         Page: 1     Date Filed: 06/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 18-40768                     United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 10, 2019
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                Plaintiff - Appellee                                            Clerk


v.

ELEAZAR PEREZ-MATEO,

                Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas


Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
Judge.*

STEPHEN A. HIGGINSON, Circuit Judge:
      In May 2018, Eleazar Perez-Mateo pleaded guilty to one count of illegal
reentry in violation of 8 U.S.C. § 1326. Using the 2016 Guidelines Manual, the
Probation Office’s Pre-Sentence Report (“PSR”) calculated for Perez-Mateo a
total offense level of 13 and a criminal history category of IV, resulting in a
Guidelines imprisonment range of 24 to 30 months. Relevant to this appeal, in
calculating Perez-Mateo’s criminal history score, the PSR assessed two points




      *   District Judge of the Northern District of Mississippi, sitting by designation.
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                                  No. 18-40768
for a February 2007 misdemeanor conviction for aiding and abetting illegal
entry.
         Neither the government nor Perez-Mateo objected to the PSR. Further,
at the August 2018 sentencing hearing, Perez-Mateo verbally confirmed that
“everything was correct” in the PSR. The district court accordingly adopted the
PSR’s offense level and criminal history calculations. Before pronouncing a
sentence, the district court noted that Perez-Mateo had “consistently been
involved in criminal conduct for a good amount of the time that [he had] been
here in the United States.” Yet, the district court recognized that Perez-Mateo
had multiple minor children living in the United States, including a fourteen-
year-old suffering from cancer. Having laid out these considerations, the
district court explained that it would decline to vary upwards: “So I’ll leave you
here, but I’m going to sentence you at the high end.” The district court
sentenced Perez-Mateo to 30 months of imprisonment and three years of
supervised release.
         Perez-Mateo timely filed a notice of appeal. On appeal, Perez-Mateo
argues for the first time that his February 2007 conviction should not have
counted towards his criminal history score. Without the February 2007
conviction, his criminal history category would have been III, not IV, resulting
in a Guidelines imprisonment range of 18 to 24 months instead of 24 to 30
months. Perez-Mateo contends that this was a plain error affecting his
substantial rights, see FED. R. CRIM. PRO. 52(b), and that this court should
exercise its discretion to correct the error.
                                         I.
         The federal Sentencing Guidelines are “complex,” so “there will be
instances when a district court’s sentencing of a defendant within the
framework of an incorrect Guidelines range goes unnoticed. In that
circumstance, because the defendant failed to object to the miscalculation,
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                                  No. 18-40768
appellate review of the error is governed by Federal Rule of Criminal Procedure
52(b).” Molina-Martinez v. United States, 136 S. Ct. 1338, 1342–43 (2016).
      Under Rule 52(b), a court of appeals has discretion to correct an error
newly raised on appeal only if the error (1) was not intentionally relinquished
or abandoned, (2) was plain, clear, or obvious, and (3) the error affected the
defendant’s substantial rights. Id. at 1343 (citing United States v. Olano, 507
U.S. 725 (1993)). Where those three conditions are met, and the error also
“‘seriously affects the fairness, integrity or public reputation of judicial
proceedings,’” then “the court of appeals should exercise its discretion to correct
the forfeited error.” Id. (quoting Olano, 507 U.S. at 736).
      A Guidelines error that satisfies the first three Olano factors “ordinarily”
also satisfies the fourth and “warrants relief under Rule 52(b).” Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1907 (2018). As the Supreme Court recently
explained in Rosales-Mireles, plain Guidelines error affecting a defendant’s
substantial rights “usually establishes a reasonable probability that a
defendant will serve a prison sentence that is more than necessary to fulfill the
purposes of incarceration.” Id. (quotation omitted). Allowing such a defendant
to be re-sentenced with corrected Guideline calculations reduces the risk of
unnecessary jail time and “exhibit[s] regard for fundamental rights and respect
for prisoners as people.” Id. (quotation omitted). In the ordinary case,
additional factors favoring error correction are that (1) re-sentencing is
“relative[ly] eas[y],” and (2) “Guidelines miscalculations ultimately result from
judicial error” rather than a defendant’s strategy. Id. at 1908.
      The government does not argue that Perez-Mateo intentionally
relinquished or abandoned his appeal position. Thus, we turn to the second,
third, and fourth Olano conditions.




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                                       A.
      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Lawrence, 920 F.3d 331, 334 (5th Cir. 2019). Under Rule 52(b), an
error is plain if it is not “subject to reasonable dispute.” Puckett v. United
States, 556 U.S. 129, 135 (2009).
      Section 4A1.2 of the Sentencing Guidelines governs whether prior
sentences count for criminal history purposes. “Any prior sentence of
imprisonment exceeding one year and one month” is counted if it (1) was
“imposed within fifteen years of the defendant’s commencement of the instant
offense,” or (2) “result[ed] in the defendant being incarcerated during any part
of such fifteen-year period.” § 4A1.2(e)(1). In addition, “Any other prior
sentence that was imposed within ten years of the defendant’s commencement
of the instant offense is counted.” § 4A1.2(e)(2). A defendant’s prior sentence is
not counted towards his or her criminal history score if it satisfies neither
4A1.2(e)(1) nor (2). § 4A1.2(e)(3) (“Any prior sentence not within the time
periods specified above is not counted.”).
      The government does not argue that Perez-Mateo’s February 2007
conviction resulted in a sentence of imprisonment exceeding one year and one
month. In those proceedings, Perez-Mateo pleaded guilty to a misdemeanor
offense of aiding and abetting illegal entry, and was sentenced on February 14,
2007 to three years of unsupervised probation. While serving that sentence, in
March 2009, Perez-Mateo pleaded true to violating his conditions of probation.
His probation was revoked and he was sentenced to 150 days of confinement.
Given the probation revocation, the conviction resulted in 150 days of
imprisonment. § 4A1.1(k)(1). Therefore, the sentence counts towards Perez-
Mateo’s criminal history score only if it was “imposed within ten years of the
defendant’s commencement of the instant offense.” § 4A1.2(e)(2). For the
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                                  No. 18-40768
sentence to count, Perez-Mateo must have commenced the instant illegal
reentry offense by February 14, 2017.
      For purposes of § 4A1.2, “the triggering date is that of the defendant’s
illegal reentry, not the date on which the defendant was found by immigration
authorities in the United States.” United States v. Ponce, 896 F.3d 726, 728
(5th Cir. 2018); see § 4A1.2, cmt. (n.8) (“the term ‘commencement of the
instant offense’ includes any relevant conduct”). According to the PSR, Perez-
Mateo was “deported and remained in Guatemala from March 2016 until he
was arrested on the instant offense [March 2, 2018].” Later, the PSR clarified
that “[f]rom March 3, 2016, until March 2, 2018, . . . while the defendant
resided in Guatemala, he was employed as an agricultural laborer.” The dates
provided in the PSR are internally consistent, confirming that Perez-Mateo re-
entered on March 2, 2018, not earlier.
      The government counters that this appeal raises a “question[] of fact
capable of resolution by the district court,” which we have said “can never
constitute plain error.” United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015)
(citing United States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001)). But Perez-
Mateo is not contending that the district court made “erroneous factual
findings” about his date of reentry. See id. Rather, Perez-Mateo’s appeal relies
on the dates recited in the PSR and adopted by the district court, which neither
party challenged below.
      The government also contends that the district court implicitly found
that Perez-Mateo reentered before February 14, 2017. However, we rejected
this precise argument in United States v. Nino-Carreon, 910 F.3d 194, 197 (5th
Cir. 2018). There, on plain error review of a criminal history calculation, we
held that where the PSR “explicit[ly]” states the “earliest offense date,
including relevant conduct,” and “nothing in the PSR points to a[n] [earlier]


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                                  No. 18-40768
date,” the government’s assertion of a contrary implicit finding is “unavailing.”
Id.
       Because the dates in the PSR here unambiguously established March 2,
2018 as Perez-Mateo’s reentry date, Perez-Mateo has shown plain error.
                                       B.
       Under the substantial rights prong, a defendant must “show a
reasonable probability that, but for the error, the outcome of the proceeding
would have been different.” Molina-Martinez, 136 S. Ct. at 1343 (quotation
omitted). “Where . . . the record is silent as to what the district court might
have done had it considered the correct Guidelines range, the court’s reliance
on an incorrect range in most instances will suffice to show an effect on the
defendant’s substantial rights.” Id. at 1347.
       Here, the record clearly indicates that the district court relied on the
incorrect 24-30 month Guidelines range. At sentencing, the district court
stated, “So I’ll stay here, I won’t move up,” and again, “I’ll leave you here, but
I’m going to sentence you at the high end. I’ll sentence you to 30 months.” The
Guidelines range clearly “inform[ed] and instruct[ed] the district court’s
determination of an appropriate sentence.” Id. at 1346.
       The government argues that the district court would have issued the
same sentence regardless of the Guidelines range because the district court at
sentencing discussed Perez-Mateo’s unscored criminal history and his record
of repeated deportations. These statements plausibly indicate that the district
court’s sentence may have been influenced by factors in addition to the 24 to
30 month Guidelines range. But they do not indicate that the district court
sentenced Perez-Mateo based solely on “factors independent of the Guidelines.”
Id. at 1348.
       The district court referred to the Guidelines range multiple times and,
as the government acknowledges, ultimately opted to “remain within the
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                                   No. 18-40768
Guidelines range and impose a sentence at the top of that range.” Perez-Mateo
has therefore shown an effect on his substantial rights.
                                         C.
      Rosales-Mireles holds that courts should ordinarily correct plain
Guidelines errors affecting a defendant’s substantial rights. However, some
cases may present “countervailing factors” that obviate any need for error
correction. 138 S. Ct. at 1909 (quotation omitted). Here, the government argues
that Perez-Mateo’s criminal history is so extensive that his sentence, even if
based on an incorrect Guidelines range, does not offend traditional notions of
fairness and justice.
      But the Court made clear in Rosales-Mireles that while criminal history
is a relevant sentencing factor under 18 U.S.C. § 3553(a), criminal history “does
not help explain whether . . . plain procedural error . . . seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. n.5; see also
United States v. Urbina-Fuentes, 900 F.3d 687, 699 (5th Cir. 2018). This case
does not present any other identified countervailing factors justifying the
denial of relief under Rule 52(b).
                                         II.
      For the foregoing reasons, we VACATE Perez-Mateo’s sentence and
REMAND to the district court for resentencing.




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