                          NONPRECEDENTIAL DISPOSITION
                           To be cited only in accordance with
                                    Fed. R. App. P. 32.1




              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                               Submitted February 15, 2012*
                                Decided February 28, 2012

                                           Before



                            MICHAEL S. KANNE, Circuit Judge

                            ANN CLAIRE WILLIAMS, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge

No. 11-1567

UNITED STATES OF AMERICA,                           Appeal from the United States District
     Plaintiff-Appellee,                            Court for the Northern District of Illinois,
                                                    Eastern Division

       v.                                           No. 10 CR 863

OSCAR GARCIA-HERNANDEZ,                             George W. Lindberg,
     Defendant-Appellant.                           Judge.



                                         ORDER

       Oscar Garcia-Hernandez appeals the sentence imposed on his guilty plea to illegally
reentering the United States after having been removed, see 8 U.S.C. § 1326(a). He contends
that the district court improperly calculated his criminal-history score under U.S.S.G.


      *
         After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
N o. 11-1567                                                                              Page 2

§ 4A.1.1(c), which authorizes the addition of up to four criminal-history points for prior
short-term sentences. The court here, however, added five. The government concedes that
this error warrants remand for resentencing.

       In 2007 Garcia, a Mexican citizen, was convicted of being a felon in possession of a
firearm and imprisoned. In 2009 he was removed to Mexico, but returned and ultimately
pleaded guilty to illegal reentry by a previously removed alien. See 8 U.S.C. § 1326. At
sentencing the probation office initially calculated a total offense level of 17 and a criminal-
history score of 9 points (3 points due to a conviction for unlawful use of a firearm, see
U.S.S.G. § 4A1.1(a); 2 points for illegally reentering the United States while on parole, see
§ 4A1.1(d); and 1 point each for 4 prior convictions that had resulted in only probation or
supervision, see § 4A1.1(c)). The probation office later supplemented the presentence report
to add a fifth point under § 4A1.1(c) to Garcia’s criminal-history score for driving on a
suspended or revoked license. The fifth point had the effect of raising Garcia’s criminal-
history score from 9 to 10, his criminal-history category from IV to V, and increasing his
Guidelines range from 37-46 months to 46-57 months. At sentencing neither Garcia nor the
United States objected to the new calculations, which the district court adopted when
imposing a 57-month sentence.

        Garcia argues, and the United States concedes, that the district court’s inclusion of
the fifth point to his criminal-history score exceeded the 4-point maximum under
§ 4A1.1(c). Because Garcia did not raise this objection during the sentencing hearing, we
review for plain error. United States v. Longstreet, 567 F.3d 911, 928 (7th Cir. 2009). We accept
the government’s concession that the district court committed plain error, see FED. R. C RIM .
P. 52(b); United States v. Olano, 507 U.S. 725, 734 (1993). When a sentencing court misapplies
the Guidelines and thereby erroneously increases a defendant’s Guidelines range, the error
can affect the defendant’s substantial rights and infect the integrity of judicial proceedings.
United States v. Jaimes-Jaimes, 406 F.3d 845, 850-51 (7th Cir. 2005); see United States v. Jumah,
599 F.3d 799, 813 (7th Cir. 2010). Guidelines errors can also be harmless when the district
court makes clear that a final decision is independent of the Guidelines range. See United
States v. Hill, 645 F.3d 900, 912 (7th Cir. 2011); United States v. Abbas, 560 F.3d 660, 666-67
(7th Cir. 2009). In this case, the district judge made clear that he had followed the
Guidelines, which he believed had been properly calculated. Because they were not, the
determination was plain error and must be remanded for resentencing.

       Garcia also contends that the sentencing order improperly compels him to
participate in the Inmate Financial Responsibility Program. On remand the district court
should clarify that Garcia’s participation is voluntary. See United States v. Boyd, 608 F.3d 331,
334-35 (7th Cir. 2010).
N o. 11-1567                                                             Page 3

       We VACATE Garcia’s sentence and REMAND for further proceedings.
