     Case: 18-50416   Document: 00514936968        Page: 1   Date Filed: 04/30/2019




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

                                                                        FILED
                                    No. 18-50416
                                                                      April 30, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

RANDY CAMPOS,

             Defendant - Appellant




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


Before HAYNES, GRAVES, and HO, Circuit Judges.
HAYNES, Circuit Judge:
      Randy Campos appeals the district court’s imposition of an eight-year
supervised release term based on its conclusion that eight years was the
mandatory minimum term. For the reasons set forth below, we REVERSE the
district court’s imposition of an eight-year supervised release term and
REMAND for resentencing to a new term, if any, of supervised release.

                              I.     Background
      Campos pleaded guilty to conspiracy to distribute and possess with
intent to distribute heroin within 1000 feet of a vocational school and college,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 860(a).         He was
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sentenced in July 2014 to sixty months of imprisonment and an eight-year
term of supervised release. 1 Campos’s supervision began January 29, 2016.
       In May 2016, the probation office reported that Campos had violated the
conditions of his supervised release by failing to report to his probation officer
as directed, truthfully answer his probation’s officer’s inquiries, and follow his
probation officer’s instructions. The probation officer completed a Violation
Worksheet stating that the “[p]eriod of supervised release to be served
following release from imprisonment” was “[no less than] 8 years to Life.”
       After a hearing, the district court revoked Campos’s supervised release.
It stated that the relevant supervised release term was “not less than eight
years up to life.” Campos did not object. The district court sentenced Campos
to nine months of imprisonment and an eight-year term of supervised release.
It did not explain its reasons for the eight-year supervised release term. 2
       The statement that Campos was subject to a mandatory minimum term
of supervised release in this context was incorrect.                 While the minimum
supervised release sentence for Campos’s underlying drug conviction was eight
years, see 21 U.S.C. §§ 841(b)(1)(B), 860(a), that floor did not apply to Campos’s
post-revocation supervised release, see 18 U.S.C. § 3583(h) (stating that
“[w]hen a term of supervised release is revoked . . . the court may include a
requirement that the defendant be placed on a term of supervised release after
imprisonment”        (emphasis      added));       U.S.S.G.   § 7B1.3(g)(2).        Campos’s
supervised release was subject only to a maximum of “the term of supervised
release authorized by statute for the offense that resulted in the original term



       1 Campos was subject to an eight-year minimum supervised release term at his
original sentencing. See 21 U.S.C. § 841(b)(1)(B) (requiring minimum four-year term of
supervised release), § 860(a) (doubling the term provided in § 841).
       2  The district court did order that Campos be placed in a residential reentry center for
the first six months of his supervised release term.
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of supervised release, less any term of imprisonment that was imposed upon
revocation of supervised release.” 18 U.S.C. § 3583(h); U.S.S.G. § 7B1.3(g)(2).
Here, that is a life term less Campos’s nine-month post-revocation
imprisonment. See 18 U.S.C. § 3583(h).
      Campos appealed his supervised release sentence.

                           II.      Legal Standard
      Because Campos did not object to the district court’s supervised-release
determination, we review his sentence for plain error.           United States v.
Putnam, 806 F.3d 853, 855 (5th Cir. 2015) (per curiam); FED. R. CRIM. P. 52(b).
To establish plain error, a petitioner must show: (1) an error, (2) which is “clear
or obvious,” that (3) “affected [his] substantial rights.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016). A petitioner generally satisfies the
third prong by showing “‘a reasonable probability that, but for the error,’ the
outcome of the proceeding would have been different.” Id. (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)).
      If a petitioner satisfies the first three prongs, we will “exercise [our]
discretion to correct the forfeited error if the error ‘seriously affects the
fairness, integrity or public reputation of judicial proceedings.’”        Molina-
Martinez, 136 S. Ct. at 1343 (quoting United States v. Olano, 507 U.S. 725, 736
(1993)). The petitioner bears the burden of showing plain error. United States
v. Huor, 852 F.3d 392, 398 (5th Cir. 2017).

                             III.     Discussion
      Campos claims the district court plainly erred when it concluded that
eight years was the mandatory minimum supervised release term, when in fact
no mandatory minimum existed. The Government essentially concedes that
the district court committed a clear or obvious error but contends that Campos
has not satisfied the third and fourth prongs of the plain error standard. We
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agree that the district court committed an error that was clear or obvious in
light of the above statute. We thus focus on the third and fourth plain error
prongs.
      To satisfy the third prong, Campos must show that the district court’s
error “affected [his] substantial rights.” Molina-Martinez, 136 S. Ct. at 1343.
The Supreme Court has stated in the context of a sentencing guidelines error
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.” Id. Absent
“unusual circumstances,” a defendant “will not be required to show more.” Id.
at 1347; see United States v. Sanchez-Arvizu, 893 F.3d 312, 316 (5th Cir. 2018)
(“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.”).
      Campos does not challenge a sentencing guidelines error; he contests the
district court’s conclusion that a minimum supervised release term existed.
But the logic of Molina-Martinez applies with even more force to this mistake.
In the sentencing guidelines context, the district court has discretion. See
Molina-Martinez, 136 S. Ct at 1345.        Here, the district court incorrectly
concluded that it lacked discretion to go below an eight-year supervised release
term, when in fact no minimum supervised release term existed.               See
18 U.S.C. § 3583(h); 21 U.S.C. §§ 841(b)(1)(B), 860; U.S.S.G. §7B1.3(g)(2). The
district court gave no explanation for its decision. The Government argues
that the district court merely “reinstated” the original term of supervised
release. But the district court did not say so and, further, did not credit the
months already served. We thus conclude there was “a reasonable probability
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of a different outcome absent the error.” Molina-Martinez, 136 S. Ct. at 1345.
Campos has satisfied the third prong.
      Because Campos has satisfied the first three prongs of plain error
review, we will “exercise [our] discretion to correct the forfeited error if the
error ‘seriously affects the fairness, integrity or public reputation of judicial
proceedings.’” Molina-Martinez, 136 S. Ct. at 1343 (quoting Olano, 507 U.S. at
736). “In the ordinary case, . . . the failure to correct a plain Guidelines error
that affects a defendant’s substantial rights” in the context of imprisonment
satisfies this requirement. Rosales-Mireles v. United States, 138 S. Ct. 1897,
1911 (2018). The Supreme Court has stated:
      The risk of unnecessary deprivation of liberty particularly
      undermines the fairness, integrity, or public reputation of judicial
      proceedings in the context of a plain Guidelines error because of
      the role the district court plays in calculating the range and the
      relative ease of correcting the error. Unlike “case[s] where trial
      strategies, in retrospect, might be criticized for leading to a
      harsher sentence,” Guidelines miscalculations ultimately result
      from judicial error. That was especially so here where the District
      Court’s error . . . was based on a mistake made in the presentence
      investigation report by the Probation Office, which works on behalf
      of the District Court.
Rosales-Mireles, 138 S. Ct. at 1908 (citation omitted) (quoting Glover v. United
States, 531 U.S. 198, 204 (2001)).
      Although Rosales-Mireles involved a prison sentence, not supervised
release, “[w]e have recognized that supervised release terms also constitute a
substantial restraint on liberty.”   Putnam, 806 F.3d at 856.       The logic of
Rosales-Mireles thus applies here.
      The Government offers a final argument that the district court’s decision
to impose eight years of supervised release was “unquestionably fair” in light
of the fact that Campos absconded from supervision almost immediately after
being released from prison. It therefore contends that this court may sustain

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the supervised release term notwithstanding the district court’s error.
Whatever the merits of the Government’s argument, we cannot assume or infer
that it is correct without first confirming that the district court was guided by
the circumstances of this case and not its mistaken presumption that a
mandatory minimum controlled.        This type of error necessarily alters the
manner in which the district court approached its decision.
      On remand, the district court may be persuaded by arguments the
Government makes in support of a long period of supervised release. But it
must do so free of the restraint from the non-existent mandatory minimum.

                             IV.    Conclusion
      For the foregoing reasons, we VACATE the district court’s imposition of
an eight-year supervised release term and REMAND for resentencing.




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