     Case: 09-20872 Document: 00511484468 Page: 1 Date Filed: 05/20/2011




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

                                                 FILED
                                                                            May 20, 2011
                                     No. 09-20872
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALVARO PIZANO-MURILLO, also known as Alvaro Murillo Pizano, also known
as Alvaro Pizano Murillo, also known as Alvaro P. Murillo, also known as Alvaro
Murillo,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-345-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Alvaro Pizano-Murillo (Pizano) appeals the sentence imposed following his
guilty plea conviction for being unlawfully present in the United States following
removal. The district court applied an upward departure from the guidelines
sentence range based upon the inadequacy of Pizano’s criminal history category,
and it sentenced Pizano to 28 months of imprisonment.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20872

      For the first time on appeal, Pizano argues that the district court erred by
applying an upward departure without giving him advance notice that it was
considering an upward departure. He maintains that the upward departure
made the sentence excessive. Because Pizano did not raise this issue in the
district court or request a continuance, we review for plain error only. See
United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002).
      In the presentence report (PSR), the probation officer identified the
inadequacy of Pizano’s criminal history category as a possible ground for an
upward departure due to Pizano’s prior deportations and Pizano’s large number
of prior convictions that did not increase his criminal history category. This was
sufficient notice that the district court was considering an upward departure,
and the district court did not commit error, plain or otherwise, by applying an
upward departure without giving Pizano sufficient notice. See id. at 219-20.
      Also for the first time on appeal, Pizano argues that the district court
erred by applying an upward departure based upon the inadequacy of his
criminal history category without certified copies of the judgments of his prior
convictions being introduced into evidence. He maintains that he would have
had notice that the Government was seeking an upward departure if it had
introduced the judgments into evidence. As Pizano did not raise this issue in the
district court, we review for plain error only. See United States v. Jenkins, 487
F.3d 279, 281 (5th Cir. 2007).
      The district court may not rely upon the description of a prior offense
contained in the PSR in order to determine whether the prior offense is a type
of offense meriting certain sentence enhancements.             United States v.
Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005). However, if a defendant does
not rebut the information contained in the PSR, the district court may rely upon
the PSR to prove the existence of the defendant’s prior convictions. United
States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004). As Pizano did not present
any evidence rebutting the evidence of his prior convictions contained in the

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                                  No. 09-20872

PSR, the district court did not plainly err by relying upon the PSR to prove the
existence of his prior convictions. See id.
      Pizano’s appointed counsel previously filed a motion to withdraw pursuant
to Anders v. California, 386 U.S. 738 (1967). In denying that motion, this court
ordered counsel to file a brief on the merits of the issue whether the district
court erred under Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), by
applying an eight-level enhancement for Pizano’s having been removed
subsequent to an aggravated felony conviction pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) based upon Pizano’s multiple prior Tennessee convictions for
simple possession of a controlled substance. Despite this court’s order, counsel
did not raise this issue in the merits brief that she filed. Nevertheless, because
the Government concedes error and to further the interests of justice, we will
consider the issue.
      The district court rejected Pizano’s objection to the eight-level
enhancement based upon the then-binding precedent of this court. See United
States v. Cepeda-Rios, 530 F.3d 333, 334-36 (5th Cir. 2008). In Carachuri-
Rosendo, the Supreme Court abrogated this court’s holding in Cepeda-Rios, and
it held that a second state offense for simple drug possession is not an
aggravated felony if that conviction “has not been enhanced based on the fact of
a prior conviction.” Carachuri-Rosendo, 130 S. Ct. at 2589. The record, as
supplemented by the Government, shows that Pizano’s prior convictions for
simple possession of a controlled substance were not enhanced based on the fact
of a prior conviction. Accordingly, as the Government concedes, the application
of the enhancement was erroneous.
      When a procedural error occurs at sentencing, a remand is required unless
the error was harmless. United States v. Delgado-Martinez, 564 F.3d 750, 752-
53 (5th Cir. 2009). In this case, nothing in the record indicates that the district
court “had a particular sentence in mind and would have imposed it,
notwithstanding the error.” United States v. Ibarra-Luna, 628 F.3d 712, 718

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                                   No. 09-20872

(5th Cir. 2010) (internal quotation marks and citation omitted). Furthermore,
as the sentence was an upward departure based on the Guidelines as opposed
to an upward variance outside of the Guidelines, the sentence appears to have
been directly influenced by the incorrectly calculated guidelines sentence range.
Thus, as the Government concedes, the error was not harmless. See id. at 718-
19. Accordingly, we vacate Pizano’s sentence and remand this case to the
district court for resentencing.
      Pizano has filed a pro se motion complaining about the performance of his
appointed counsel and requesting that this court order counsel to provide him
with documents from his case. However, “[u]nless specifically directed by court
order, pro se motions, briefs or correspondence will not be filed if the party is
represented by counsel.” 5 TH C IR. R. 28.6. Therefore, we will not consider the
motion.    If Pizano believes that his counsel is not providing adequate
representation, he may move for the appointment of substitute counsel in the
district court on remand.
      Appointed counsel failed to follow this court’s previous order by not
briefing the issue whether the application of the eight-level enhancement under
§ 2L1.2(b)(1)(C) was erroneous, and counsel filed a brief that is wholly
inadequate. Counsel Cheryl Harris Diggs is ordered to show cause within 30
days why she should not be denied payment for services rendered and expenses
incurred in relation to this appeal for failing to follow this court’s previous order
and for filing an inadequate brief.
      VACATED AND REMANDED FOR RESENTENCING; MOTION FOR
PRODUCTION OF DOCUMENTS DENIED; SHOW CAUSE ORDER ISSUED.




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