     Case: 14-11304    Document: 00514033076       Page: 1   Date Filed: 06/14/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 14-11304
                                                                            Fifth Circuit

                                                                          FILED
                                                                      June 14, 2017
UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

STEVE CUELLAR ZUNIGA,

             Defendant - Appellant




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


Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      The opinion issued June 5, 2017 is withdrawn by the panel, and the
following is issued in its place:
      In this appeal, Steve Cuellar Zuniga first challenges the district court’s
denial of his motion to suppress evidence obtained during a warrantless search
of his person and the vehicle within which he rode as a passenger. Second,
Zuniga objects to his career offender sentence under U.S.S.G § 4B1.2 on the
ground that its identically-worded residual clause was held unconstitutional
by the Supreme Court in Johnson. Third, Zuniga argues that his career
offender sentence is additionally infirm because his prior conviction for
delivery of a controlled substance cannot serve as a predicate offense for the
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                                       No. 14-11304
enhancement. For the reasons that follow, we AFFIRM the district court’s
denial of Zuniga’s suppression motion, but we VACATE Zuniga’s sentence, and
REMAND for resentencing.
                                               I.
       In March 2014, the San Angelo Police Department (“SAPD”) and the
Texas Department of Public Safety (“DPS”), based on a tip from a cooperating
defendant, combined efforts to interdict a traffic stop which confirmed—via the
warrantless search of Steve Cuellar Zuniga’s person and the vehicle within
which he rode as a passenger—that Zuniga was a methamphetamine supplier.
       After the cooperating defendant agreed to participate in a controlled buy,
the two teams formulated a plan: the SAPD-led team would conduct
surveillance on Zuniga’s residence, while DPS officers surveilled the
anticipated methamphetamine delivery area. While surveilling Zuniga’s
residence, Detective Eddie Chavarria observed a porch light come on and a
man emerge from the house and approach the truck while shining a flashlight.
Moments later, another person emerged, and Detective Chavarria observed the
duo conduct what appeared to be a vehicle inspection: one individual inspected
the vehicle while the other tested the emergency flashers, left and right turn
signals, brake lights, and the high beams. Detective Chavarria immediately
relayed this information to other officers.
       Twenty minutes later, the vehicle left Zuniga’s residence and Detective
Chavarria decided to follow the vehicle. Approximately one block from the
house, he witnessed the vehicle fail to signal for 100 feet continuously before
turning left, in violation of Texas transportation law. 1 He immediately
informed other officers they had grounds to stop the vehicle. When none of his


       1 Texas Transportation Code § 545.104 provides that a vehicle’s “operator intending
to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of
movement of the vehicle before the turn.”
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                                         No. 14-11304
fellow officers made the stop, Detective Chavarria continued to trail the
vehicle. After driving approximately 18 blocks, Zuniga’s vehicle pulled up to a
convenience store and parked in a “disabled only” parking space. 2 Detective
Chavarria radioed the truck’s location and reported the potential parking
violation.
       Sergeant David Egger heard Detective Chavarria’s report and drove past
the area. Sergeant Egger then instructed Detective Mark Medley to walk in
front of the truck to see whether a disabled parking placard hung from the
rear-view mirror. Detective Medley reported back that he had observed
something hanging from the rear-view mirror, though he could not be sure that
it was the required parking placard.
       Based on this information, Sergeant Egger asked Officer Cody Pruit, who
had been notified at the start of his shift that his assistance might be needed
later, to stop the vehicle shortly after it had left the parking lot. Officer Pruit—
who later testified he only stopped the truck at Sergeant Egger’s instruction,
had not personally witnessed the alleged parking violation and was told that
Zuniga would be driving the vehicle without a valid driver’s license—effected
the stop. Zuniga was not driving; instead, Angela Favila drove as Zuniga rode
along as a passenger. After dispatch revealed that Favila did not have a valid
driver’s license and Zuniga had two outstanding city warrants, both were
arrested. A subsequent search of Zuniga’s person yielded a plastic bag of
methamphetamine. While searching Zuniga’s vehicle, officers discovered a
backpack       containing       more     methamphetamine,             a    nylon     holster,     a



       2 Pursuant to Texas Transportation Code § 681.006(a): “[A] vehicle may be parked for
an unlimited period in a parking space or area that is designated specifically for persons with
physical disabilities if: (1) the vehicle is being operated by or for the transportation of a person
with a disability; and (2) there are: (A) displayed on the vehicle special license plates issued
under Section 504.201; or (B) placed on the rearview mirror of the vehicle’s front windshield
a disabled parking placard.”
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                                 No. 14-11304
semiautomatic pistol, Mexican Mafia-affiliated paperwork, and two cell
phones.
      Zuniga moved to suppress all evidence stemming from the traffic stop.
The district court denied Zuniga’s motion, reasoning that both traffic violations
witnessed by Detective Chavarria were imputed to Officer Pruit under the
collective knowledge doctrine, which provided him reasonable suspicion and
justification for stopping the vehicle. Zuniga was subsequently charged by a
federal grand jury with four counts. He entered a conditional guilty plea only
to one count of Possession with Intent to Distribute 500 Grams or More of
Methamphetamine and Aiding and Abetting, in violation of 21 U.S.C.
§ 841(a)(1), 841(b)(1)(A)(viii), and 18 U.S.C. § 2, preserving his right to
challenge the suppression ruling.
      At sentencing, the district court applied U.S.S.G. § 4B1.1’s career
offender enhancement for Zuniga’s two prior felony convictions of (1) evading
arrest and (2) delivery of a controlled substance, finding that they satisfied
§ 4B1.2’s definitions of “crime of violence” and “controlled substance offense”
respectively. Based on the applicable Guidelines range of 262 to 327 months’
imprisonment, the district court imposed a sentence of 327 months’
imprisonment with five years’ supervised release. Zuniga timely appealed.
      Following oral argument, we placed the case in abeyance to await the
outcome of the en banc decision in United States v. Gonzalez-Longoria, No. 15-
40041. Once the Gonzalez-Longoria decision was issued, we requested and
received supplemental briefing from the parties advising on the effect, if any,
of Gonzales-Longoria on the Court’s disposition in this case. On August 24,
2016, Zuniga moved to file another supplemental brief, this time to address
United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), a recent panel decision
by this Court concerning the applicability of § 4B1.1 to the same Texas drug
offense of which Zuniga had been convicted. We granted Zuniga’s motion over
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                                  No. 14-11304
the Government’s objection and received supplemental briefing from both
parties on the issue.
                                        II.
      We consider, first, Zuniga’s challenge of the denial of his motion to
suppress evidence found during the warrantless search following the vehicle
stop. When assessing a denial of a motion to suppress evidence, we review
“factual findings for clear error and the ultimate constitutionality of law
enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594 (5th
Cir. 2014). The evidence is viewed in the light most favorable to the prevailing
party, which in this case is the Government. See United States v. Pack, 612
F.3d 341, 347 (5th Cir. 2010).
      Our inquiry is two-fold. First, we must determine whether there existed
enough information to support a finding of reasonable suspicion to stop the
vehicle within which Zuniga rode as a passenger. Second, if so, we must
determine whether that knowledge can be imputed under the collective
knowledge doctrine to Officer Pruit, who effected the stop and conducted the
search.
                                        A.
      The Fourth Amendment protects individuals “against unreasonable
searches and seizures.” U.S. Const. amend. IV. Traffic stops are deemed
seizures for the purposes of the Fourth Amendment. United States v. Lopez-
Moreno, 420 F.3d 420, 430 (5th Cir. 2005). “For a traffic stop to be justified at
its inception, an officer must have an objectively reasonable suspicion that
some sort of illegal activity, such as a traffic violation, occurred, or is about to
occur, before stopping the vehicle.” Id.; see also United States v. Breeland, 53
F.3d 100, 102 (5th Cir. 1995). The Supreme Court has stated that in making a
reasonable suspicion inquiry, a court “must look at the ‘totality of the
circumstances’ of each case to see whether the detaining officer has a
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                                     No. 14-11304
‘particularized and objective basis’ for suspecting legal wrongdoing.” United
States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449
U.S. 411, 417 (1981)). We have further instructed that reasonable suspicion
exists when the officer can point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the
search and seizure. See, e.g., United States v. Santiago, 310 F.3d 336, 340 (5th
Cir. 2002).
       Zuniga argues that the justifications supporting the stop should not be
considered, first, due to “staleness” concerns regarding the turn-signal offense
and, second, because the parking infraction was not confirmed until after the
stop. 3 As for staleness, Zuniga suggests that we read Supreme Court precedent
as mandating a “contemporaneity requirement” in this context. See Whren v.
United States, 517 U.S. 806, 810 (1996). Although conceding that neither
Whren itself nor any precedent of this Court has spoken directly to this issue,
Zuniga contends that the Sixth Circuit’s United States v. Copeland, 321 F.3d
582 (6th Cir. 2003), decision provides support for construing a temporal
limitation to Whren stops.
      In Copeland, speaking to the defendants’ arguments that the stop of
their vehicle for a completed parking violation was unreasonable, and thus the
officers lacked probable cause, the Sixth Circuit explained:
      Although an officer may effect a stop of a vehicle for parking
      illegally, that stop is nonetheless subject to the general
      reasonableness requirements of Whren. In particular, where an
      officer is in possession of information that creates the basis for
      probable cause, he is required to act upon this information within
      a reasonable period of time—otherwise the existence of probable

      3   Zuniga also takes issue with the cooperating defendant’s qualifications under the
Supreme Court’s Florida v. J.L., 529 U.S. 266 (2000), decision. We need not consider the
merits of this argument, as the information supplied by the cooperating defendant did not
directly factor into the district court’s denial of Zuniga’s motion.

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                                  No. 14-11304
      cause is said to have become stale. Whether the facts creating the
      basis for probable cause have become stale is directly related to the
      nature of those facts. “In general, the basic criterion as to the
      duration of probable cause is the inherent nature of the crime[.]”
      “To determine whether evidence establishing probable cause is
      ‘stale,’ we consider the inherent nature of the suspected crime….”
      Logically, where an observed parking violation is not ongoing, an
      officer is required to effect a stop based upon this conduct within a
      reasonable period of time. Because a parking violation necessarily
      takes place only when a vehicle is stopped or standing, the time in
      which a moving vehicle can reasonably be stopped for a parking
      violation is relatively limited.

Copeland, 321 F.3d at 594–95 (citations omitted). Nevertheless, the Copeland
court concluded that “given the circumstances surrounding the stop”—
including the stop of the defendants one mile from their parked location—the
stop of the vehicle was reasonable. Id. at 595.
      We do not discount the reasoning expounded by our sister circuit in
Copeland. Admittedly, on the record before us, Zuniga’s staleness argument is
not wholly devoid of support. The record indicates that the turn-signal offense
occurred and was immediately relayed; yet, the call went unanswered by fellow
officers. In fact, Zuniga was not stopped for this violation until approximately
fifteen minutes after it was observed. But other factors provide support for the
Government’s argument that the stop was reasonable. Notably, Zuniga does
not dispute that Detective Chavarria and other agents observed his vehicle fail
to signal continuously for at least 100 feet before turning. Nor does Zuniga
dispute that Detective Chavarria radioed information about the turn-signal
violation to his colleagues as soon as he saw it occur, although none of the other
officers were in position to stop the vehicle at the time. Thus, in following the
Copeland court’s lead in considering the “circumstances surrounding the stop,”
321 F.3d at 595, we hold that the totality of the circumstances do not dictate a
finding that the turn-signal violation was too stale to justify stopping the

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                                  No. 14-11304
vehicle. That is to say, the delay here is not enough to negate the violation as
grounds for the later stop.
      We make no attempt to articulate a specific time limitation to which
officers must adhere in effecting a stop following a traffic violation. Rather, we
stress that, consistent with our holdings in similar contexts, stops following
transportation violations must be reasonable in light of the circumstances. See,
e.g., United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014) (emphasizing
that “[s]tale information cannot be used to establish probable cause”). To
reiterate, we hold only that the elapsed time between an observed violation
and any subsequent stop must be reasonable upon consideration of the totality
of the circumstances.
      Because we conclude that the totality of the circumstances surrounding
the turn-signal violation provided the requisite reasonable suspicion to stop
Zuniga’s vehicle, we need not decide whether the second traffic violation
provides an independent justification for the stop.
                                       B.
      Having determined there existed reasonable suspicion to stop Zuniga’s
vehicle, we now consider whether the collective knowledge doctrine provided
the grounds for imputation of that information to Officer Pruit.
      Reasonable suspicion to stop a vehicle, or probable cause to conduct a
search, may arise through the collective knowledge of the officers involved in
the operation. United States v. Powell, 732 F.3d 361, 369 (5th Cir. 2013);
United States v. Clark, 559 F.2d 420, 424 (5th Cir. 1977). Under the collective
knowledge doctrine, an officer initiating the stop or conducting the search need
not have personal knowledge of the evidence that gave rise to the reasonable
suspicion or probable cause, so long as he is acting at the request of those who
have the necessary information. See United States v. Ibarra-Sanchez, 199 F.3d
753, 759 (5th Cir. 1999). In other words, the collective knowledge theory
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                                      No. 14-11304
applies so long as there is “some degree of communication” between the acting
officer and the officer who has knowledge of the necessary facts. United States
v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
       Here, Zuniga does not deny that officers could rely on the collective
knowledge doctrine to transfer reasonable suspicion between each other.
Instead, he falls back on his principal argument that the officers failed to
establish any reasonable suspicion that could be transferred. As we discussed
above, we do not agree. And although Officer Pruit’s testimony shows that he
only effected the stop at Sergeant Egger’s instruction, his lack of personalized
suspicion is “immaterial . . . because under the ‘collective knowledge’ doctrine,
[Officer Pruit] did not need to form [his] own suspicion.” Ibarra-Sanchez, 199
F.3d at 760 n.6. The suspicion transferred by the law enforcement agents who
observed Zuniga’s traffic violation suffices. Accordingly, the district court’s
denial of Zuniga’s motion to suppress was not in error. 4
                                            III.
       We now turn to Zuniga’s challenge of his 327-month sentence. Zuniga
raises two arguments. We address each in turn.
                                             A.
       First, Zuniga argues that remand of his career offender sentence is
required under the reasoning of United States v. Johnson, 135 S. Ct. 2551
(2015). In Johnson, the Supreme Court struck down the “residual clause” of
the    Armed     Career     Criminal     Act,      18   U.S.C.    §    924(e)(2)(B)(ii),   as
unconstitutionally vague. 135 S. Ct. at 2257. Zuniga argues that the identically



       4  We note that even if we were to find a Fourth Amendment violation, Zuniga’s claim
encounters yet another obstacle in that Officer Pruit’s discovery of two outstanding warrants
for Zuniga may constitute a sufficient intervening event to break the causal chain between
the putatively unlawful stop and the subsequent discovery of drug-related evidence. See Utah
v. Strieff, 136 S. Ct. 2056, 2062 (2016).

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                                      No. 14-11304
worded residual clause in § 4B1.2(a)(2)’s definition of “crime of violence” suffers
from the same constitutional defect 5 and therefore his prior conviction for
evading arrest does not qualify as a “crime of violence” for career offender
purposes. The Government, in fact, agrees with Zuniga that remand is
appropriate under Johnson. Since briefing and oral argument, the Supreme
Court granted certiorari in Beckles v. United States, 137 S. Ct. 886 (2017), to
address a similar due process challenge to § 4B1.2(a)(2)’s residual clause. In
March, the Supreme Court issued a decision, holding that the Sentencing
Guidelines “are not subject to vagueness challenges under the Due Process
Clause.” Id. at 890. In a recent letter to the Court, Zuniga concedes that Beckles
appears to foreclose his argument. We agree and therefore must reject the view
which is shared by Zuniga and the Government.
                                            B.
       Next, Zuniga challenges his career offender sentence on the basis that
his prior Texas conviction for delivery of a controlled substance cannot serve
as a predicate offense for purposes of § 4B1.1’s enhancement. Zuniga argues
that vacation of his sentence is compelled by United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016) and Mathis v. United States, 136 S. Ct. 2243 (2016), which
were decided during the pendency of this appeal.
       In Hinkle, the defendant had a prior conviction under this same Texas
statute and mounted the same challenge to his career offender sentence that
Zuniga does here. And in Hinkle, this Court squarely held:                    “That prior
conviction cannot serve as a predicate offense under the Career Offender
Guideline provision, which is § 4B1.1.” 832 F.3d at 576–77. This is because




       5 Effective August 1, 2016, the Sentencing Commission amended § 4B1.2(a)(2) to
delete the residual clause, noting that it implicated many of the same concerns cited by the
Supreme Court in Johnson.
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                                         No. 14-11304
“[t]he ‘delivery’ element of [Zuniga’s] crime of conviction 6 criminalizes a
‘greater swath of conduct than the elements of the relevant [Guidelines]
offense.” Id. at 576 (quoting Mathis, 136 S. Ct. at 2251) (some alterations in
original). We further explained that although the law of this Circuit previously
permitted sentencing courts to refer to record documents to ascertain the
actual method of delivery on which a defendant’s conviction was based for
purposes of determining whether the conviction constituted a controlled
substance offense under the Guidelines—the so-called “modified categorical
approach”—“Mathis makes clear that sentencing courts may no longer do so.”
Id. at 574–75. Accordingly, Zuniga’s conviction is categorically “not a controlled
substance offense under [§ 4B1.2(b) of] the Guidelines.” Id. at 576 (quoting
Mathis, 136 S. Ct. at 2251). 7
       The Government concedes that Hinkle and Mathis are dispositive,
requiring us to vacate Zuniga’s career offender sentence even under a plain
error standard. 8 The Government contends, however, that we should decline
to reach the merits of this argument because Zuniga forfeited it by failing to




       6   See Tex. Health & Safety Code Ann. §§ 481.112(a) and 481.002(8).

       7Zuniga acknowledges that the district court did not consider state court documents
associated with his prior conviction; however, the Government had located the documents
and intended to offer them to supplement the record on appeal, which we may consider in
deciding whether Zuniga’s enhancement was supported. See States v. Vargas-Soto, 700 F.3d
180, 183 (5th Cir. 2012). In Zuniga’s case, the relevant state court documents would have
demonstrated that his prior conviction in fact fell within the definition of a controlled
substance offense in § 4B1.2(b), effectively foreclosing this line of argument under our prior
precedent.

       8 As a threshold matter, the Government notes that we need not address this issue if
we agree with the parties that § 4B1.2(a)(2) is unconstitutional under Johnson. As discussed
above in Part III.A, Beckles dictates a different result on that issue. It is therefore appropriate
that we consider whether Zuniga’s sentencing claim may nonetheless prevail on this
alternative ground.

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                                         No. 14-11304
raise it in the district court and in his opening brief to this Court. 9 According
to the Government, Mathis did not change the law; it merely “reaffirmed” the
principle, articulated in Descamps v. United States, 133 S. Ct. 2276, 2282
(2013), that the modified categorical approach may only be used to narrow an
overly broad statute that is divisible, i.e., a statute that sets out alternative
elements of an offense (rather than alternative means of committing the
offense).
       Conversely, Zuniga maintains that his claim satisfies our exception to
forfeiture because Mathis and Hinkle are “intervening court decision[s]” that
“provided an important clarification in the law,” and our refusal to consider
this issue would result in “perpetuating incorrect law.” Am. Int’l Specialty
Lines Ins. Co. v. Res-Care Inc., 529 F.3d 649, 661 & n.28 (5th Cir. 2008). Indeed,
Zuniga asserts that attempting to raise this claim earlier would not have been
successful, as demonstrated by recent unpublished decisions in this Circuit
that were issued before Hinkle, rejecting this very claim. See, e.g., United
States v. Collier, 603 F. App’x 339 (5th Cir. May 18, 2015); United States v.
Conley, 644 F. App’x 294 (5th Cir. Mar. 23, 2016), cert. granted, judgment
vacated, 137 S. Ct. 153 (2016).
       In those cases, we rejected the contention that it was plain error for a
district court to consider state court documents to determine whether the
defendants’ convictions under the same Texas statute constituted a controlled



       9 Although the Government refers to this issue as a matter of “waiver” and we have
sometimes used the terms “forfeiture” and “waiver” interchangeably, the issue here is
appropriately characterized as one of forfeiture. “Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional relinquishment or abandonment of
a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (internal quotations and
citations omitted). Failure to raise a claim to the district court “constitutes a forfeiture, not a
waiver, of that right for the purposes of appeal.” United States v. Chavez-Valencia, 116 F.3d
127, 130 (5th Cir. 1997). Similarly, “any issue not raised in an appellant’s opening brief is
forfeited.” United States v. Bowen, 818 F.3d 179, 192 n.8 (5th Cir. 2016).
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                                  No. 14-11304
substance offense for sentencing enhancement purposes. Although we
acknowledged the defendants’ reliance on Descamps, we nonetheless concluded
that this argument, “if not foreclosed, [is] unsettled and at least subject to
reasonable dispute,” and “[a] claim subject to reasonable dispute cannot
succeed on plain error review. ” Conley, 644 F. App’x at 295 (citing Puckett v.
United States, 556 U.S. 129, 135 (2009)). Pertinently, the Supreme Court
granted certiorari in Conley, vacated the judgment, and remanded the case to
our Court “for further consideration in light of Mathis v. United States[,136 S.
Ct. 2243 (2016)].” Conley v. United States, 137 S. Ct. 153 (2016) (emphasis
added).
        Examining Descamps alongside Mathis further supports Zuniga’s
position that Mathis clarified the law on divisibility in important respects. In
Descamps, the Court specifically addressed the question of “whether
sentencing courts may . . . consult additional documents when a defendant was
convicted under an ‘indivisible’ statute—i.e., one not containing alternative
elements—that criminalizes a broader swath of conduct than the relevant
generic offense.” 133 S. Ct. at 2281. The Court answered the question in the
negative. Id. at 2282. It reiterated that sentencing courts may use the modified
categorical approach when the statute under which the defendant was
convicted is divisible, that is, it sets out alternative elements of the offense,
effectively creating multiple, alternative versions of the crime. Id. at 2281,
2284.
        Mathis, on the other hand, concerned “a different kind of alternatively
phrased law: not one that lists multiple elements disjunctively, but instead
one that enumerates various factual means of committing a single element.”
136 S. Ct. at 2249. A split among the circuits existed as to whether the modified
categorical approach can be used in that circumstance to compare the
defendant’s crime of conviction with the elements of the generic offense. Id. at
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                                     No. 14-11304
2251. Mathis settled the issue, holding that alternative means do not
alternative elements make, precluding consideration of any record materials
in sentencing decisions. Id. Hinkle then applied Mathis to the same Texas
statute under which Zuniga was convicted, resolving any uncertainty in this
Circuit on this issue.
      We are sufficiently persuaded by Zuniga’s arguments against forfeiture.
Accordingly, we address the merits of Zuniga’s claim to determine whether the
district court committed plain error.
      Zuniga’s claim easily satisfies the plain error standard. To obtain relief,
Zuniga must show (1) an error that (2) is obvious and (3) affected his
substantial rights. United States v. Olano, 507 U.S. 725 (1993). “Once these
three conditions have been met, the court of appeals should exercise its
discretion to correct the forfeited error if the error seriously affects the fairness,
integrity or public reputation of the judicial proceedings.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016) (internal citations omitted).
      Our preceding discussion makes clear that Zuniga has shown an obvious
error. Zuniga further demonstrates that the error affected his substantial
rights. Zuniga’s career offender guideline range was 262 to 327 months’
imprisonment, based on an offense level of 34 and a criminal-history category
of VI. Without relying on the prior drug-related conviction, Zuniga would at
most have one qualifying conviction under § 4B1.2, but a defendant needs at
least two qualifying convictions to be deemed a career offender. See § 4B1.1(a).
Zuniga’s non-career offender range would have been 168 to 210 months’
imprisonment, based on an offense level of 33 and a criminal history category
of III. See U.S.S.G., ch. 5, pt. A (Sentencing Table). 10 “In most cases a defendant



      10 Zuniga argues that the gap between the sentencing ranges should be even larger
because he is eligible for a lower base offense level based on an intervening amendment to
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                                      No. 14-11304
who has shown that the district court mistakenly deemed applicable an
incorrect, higher Guidelines range has demonstrated a reasonable probability
of a different outcome,” in which case, he has shown the error affects his
substantial rights. Molina-Martinez, 136 S. Ct. at 1343, 1346.
       As to the fourth prong of plain error review, we consider whether, based
on “the particular facts of [the] case,” the error “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v.
Hernandez, 690 F.3d 613, 622 (5th Cir. 2012). Importantly, “we do not view 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). We have
recognized, however, that a “substantial disparity between the imposed
sentence and the applicable Guidelines range” may warrant the exercise of our
discretion to correct the error, if the particular facts of the case so advise. See,
e.g., Hernandez, 690 F.3d at 622.
       Here, the government has conceded that the error was plain. Given this
concession and the totality of the circumstances, including the difference in
treatment that would occur if we allow the error to persist and the significant
disparity between the imposed sentence and the applicable Guidelines’ range,
we conclude that leaving Zuniga’s erroneous sentence in place would “seriously
affect[ ] the fairness, integrity, or public reputation of judicial proceedings.” Id.
Accordingly, Zuniga has demonstrated his entitlement to remand for
resentencing.
AFFIRMED in part, VACATED in part, and REMANDED for
resentencing.




the drug-quantity guidelines. Because Zuniga did not specifically raise this issue as a point
of error for our determination, we decline to address it.
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