     Case: 16-41378   Document: 00514525230     Page: 1   Date Filed: 06/22/2018




                        REVISED June 22, 2018

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


                                 No. 16-41378
                                                                       FILED
                                                                   June 20, 2018
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff – Appellee,

v.

MARIO SANCHEZ-ARVIZU,

             Defendant – Appellant.



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


Before JOLLY, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:
      Mario Sanchez-Arvizu pleaded guilty to illegal reentry and was
sentenced to 42 months in prison. He appeals, arguing for the first time that
the district court erred by applying a 16-level enhancement for his prior
conviction for indecency with a child.     Concluding that the district court
committed reversible plain error, we VACATE his sentence and REMAND for
resentencing.
                                       I
      Sanchez-Arvizu pleaded guilty to illegal reentry in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Applying the 2015 Sentencing Guidelines, the probation
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                                  No. 16-41378
officer assessed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on a determination that Sanchez-Arvizu was deported after a conviction
for a “crime of violence”—his Texas conviction for indecency with a child by
sexual contact in violation of Texas Penal Code section 21.11(a)(1).         This
produced an advisory Guidelines range of 41 to 51 months of imprisonment.
      At the sentencing hearing, the district court accepted the probation
officer’s Guidelines calculation without objection by Sanchez-Arvizu. Defense
counsel stated that, under the November 2016 Guidelines, Sanchez-Arvizu’s
sentencing range would be 15 to 21 months. The probation officer arrived at
an even lower calculation under the November 2016 Guidelines. The probation
officer informed the district court that applying the new Guidelines would
result in no enhancement and a sentencing range of 1 to 7 months of
incarceration. The district court asked the probation officer whether this range
reflected a conviction for indecency with a child, and the probation officer
confirmed that it did.
      The Government requested a Guidelines sentence; defense counsel asked
the district court to consider a “downward variance,” or in the alternative, a
sentence at the low end of the Guidelines range. The district court ultimately
chose to “stay within the advisory range.” While noting that “a sentence of 51
months would be entirely appropriate,” the district court sentenced Sanchez-
Arvizu at the low end of the Guidelines range because this was his first
conviction for illegal reentry. The district court stated that it had “considered
all of the [18 U.S.C. §] 3553(a) factors” and sentenced Sanchez-Arvizu to 42
months in prison followed by a 3-year term of supervised release. Sanchez-
Arvizu timely appealed.
                                        II
      Because Sanchez-Arvizu did not object to his sentence in the district
court, we review for plain error. See United States v. Carlile, 884 F.3d 554, 556
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                                  No. 16-41378
(5th Cir. 2018); FED. R. CRIM. P. 52(b) (“A plain error that affects substantial
rights may be considered even though it was not brought to the court’s
attention.”). To show plain error, Sanchez-Arvizu must show: (1) an error or
defect not affirmatively waived; (2) that is “clear or obvious, rather than subject
to reasonable dispute”; and (3) that affected his substantial rights. United
States v. Prieto, 801 F.3d 547, 549–50 (5th Cir. 2015) (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)). If these three conditions are satisfied, we
may exercise discretion to remedy the error if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

                                        III
      Under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015), a defendant receives a 16-
level enhancement if, before his previous deportation, he was convicted of a
felony that is a “crime of violence.” The 2015 definition of a crime of violence
includes “sexual abuse of a minor.” U.S.S.G. § 2L1.2(b)(1), cmt. n.1(B)(iii)
(2015).   While this appeal was pending, the Supreme Court in Esquivel-
Quintana v. Sessions held that “in the context of statutory rape offenses
focused solely on the age of the participants, the generic federal definition of
‘sexual abuse of a minor’ . . . requires the age of the victim to be less than 16.”
137 S. Ct. 1562, 1572–73 (2017). The statute under which Sanchez-Arvizu was
convicted for indecency with a child makes it a felony to engage in sexual
contact with a child younger than 17 years of age. See Tex. Penal Code Ann.
§ 21.11(a)(1) (2013).   The Texas statute at issue is therefore categorically
broader than the generic federal definition of “sexual abuse of a minor.” See
137 S. Ct. at 1568. Thus, as the Government concedes in light of Esquivel-
Quintana, the district court erred by deeming Sanchez-Arvizu’s conviction for
indecency with a child a crime of violence under § 2L1.2 of the Guidelines, and

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                                  No. 16-41378
by applying the corresponding 16-level enhancement. Sanchez-Arvizu has
therefore satisfied the first prong of plain error review.
      “In considering whether an error is ‘clear or obvious’ we look to the ‘state
of the law at the time of appeal,’ and we must decide whether controlling circuit
or Supreme Court precedent has reached the issue in question, or whether the
legal question would be subject to ‘reasonable dispute.’”        United States v.
Fields, 777 F.3d 799, 802 (5th Cir. 2015) (quoting United States v. Segura, 747
F.3d 323, 330 (5th Cir. 2014)). As the Government concedes, the district court’s
error is now clear and obvious under Esquivel-Quintana, satisfying prong two.
      Turning to the third prong, “this court may correct a plain error only if
it ‘affected the appellant’s substantial rights.’” United States v. Rivera, 784
F.3d 1012, 1018 (5th Cir. 2015) (quoting Puckett, 556 U.S. at 135).              “A
sentencing error affects a defendant’s substantial rights if he can show a
reasonable probability that, but for the district court’s error, he would have
received a lesser sentence.” Id. (quoting United States v. John, 597 F.3d 263,
284–85 (5th Cir. 2010)). “When 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.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). This is because
the Guidelines serve as “the framework for sentencing” and “anchor . . . the
district court’s discretion.” Id. (quoting Peugh v. United States, 569 U.S. 530,
542, 549 (2013)).
      Under this standard, the district court’s error affected Sanchez-Arvizu’s
substantial rights.    Sanchez-Arvizu was sentenced under the incorrect
Guidelines range to 42 months of imprisonment, which is double the top of the
correct Guidelines range of 15 to 21 months. He has therefore demonstrated a
“reasonable probability that, but for the district court’s [application of the
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                                    No. 16-41378
wrong Guidelines range], he would have received a lesser sentence.”             See
Rivera, 784 F.3d at 1018 (quoting John, 597 F.3d at 285).
      The Supreme Court has recognized that “[t]here may be instances when,
despite application of an erroneous Guidelines range, a reasonable probability
of prejudice does not exist.” Molina-Martinez, 136 S. Ct. at 1346. This is in
part because “[t]he sentencing process is particular to each defendant . . . and
a reviewing court must consider the facts and circumstances of the case before
it.” Id. Thus, the record may show that “the district court thought the sentence
it chose was appropriate irrespective of the Guidelines range.” Id. “Where,
however, 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.
      Such is the case here; despite the district court’s discussion of Sanchez-
Arvizu’s prior conviction for indecency with a child and consideration of the
§ 3553(a) factors, the record is silent as to what the district court might have
done had it considered the correct Guidelines range.            The transcript of
Sanchez-Arvizu’s September 2016 sentencing hearing indicates that the court
anchored Sanchez-Arvizu’s sentence to the incorrect Guidelines range. At the
hearing, the district court began its analysis by announcing the incorrect
Guidelines range of 41 to 51 months. The court then heard from defense
counsel and the probation officer about pending changes to the Sentencing
Guidelines that were to take effect that November. Defense counsel stated
incorrectly that, under the proposed amendment, Sanchez-Arvizu’s Guidelines
range would be reduced to 15 to 21 months. The probation officer provided a
different calculation; under the amended Guidelines, Sanchez-Arvizu’s
sentencing range would be between 1 and 7 months. The court then asked
whether the amended Guidelines range provided by the probation officer would
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                                  No. 16-41378
apply even though Sanchez-Arvizu had a prior conviction for indecency with a
child, and the probation officer confirmed. The court stated that this amended
range would not be retroactive and that it was “not inclined to follow” it or “to
vary down or vary up” from the incorrect range.
      Based on this exchange, which centered on the probation officer’s
estimated Guidelines range of 1 to 7 months, we cannot conclude that the
district court considered and rejected the correct Guidelines range of 15 to 21
months. Regardless, the court treated both estimates of the amended range
offered by defense counsel and the probation officer as an optional downward
departure and not as “the framework for sentencing” to “anchor [its]
discretion.” See Molina-Martinez, 136 S. Ct. at 1345. The record is therefore
silent with regard to how the court would have sentenced Sanchez-Arvizu had
it considered the correct Guidelines range. See id. at 1347.
      Nor does the record show that “the district court thought the sentence it
chose was appropriate irrespective of the Guidelines range.” Id. at 1346. The
district court discussed Sanchez-Arvizu’s previous conviction for indecency
with a child and the § 3553(a) factors; stated that “[o]ther than proposed
changes in November, [it did not] see a reason for a downward variance,” and
it would not “vary up”; and ultimately decided that it would “stay within the
advisory range.” The court further stated that it would “stay close to the low
end” of that range because this was Sanchez-Arvizu’s first conviction for illegal
reentry.   Thus, the transcript demonstrates that the court’s sentence was
firmly rooted in the incorrect Guidelines range, and not chosen “irrespective of
[it].” See id. There is therefore a reasonable probability that, but for the court’s
error, Sanchez-Arvizu would have received a lesser sentence. See Rivera, 784
F.3d at 1018. Accordingly, the district court’s error affected Sanchez-Arvizu’s
substantial rights.


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                                  No. 16-41378
      The fourth prong of plain error review is not “automatic if the other three
prongs are met.” United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir.
2012) (en banc). We exercise our discretion under the fourth prong if the error
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.”      Puckett, 556 U.S. at 135 (quoting Olano, 507 U.S. at 732).
Generally, an incorrect application of the Sentencing Guidelines seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
United States v. Alarcon, 261 F.3d 416, 424 (5th Cir. 2001). We also consider
the particular facts of the case, see United States v. Martinez-Rodriguez, 821
F.3d 659, 666 (5th Cir. 2016), and the degree of the error in determining
whether to exercise our discretion. See United States v. Guillen-Cruz, 853 F.3d
768, 775–76 (5th Cir. 2017) (collecting cases and holding a sentence disparity
of 8 months was reversible plain error); United States v. Santacruz-Hernandez,
648 F. App’x 456, 458 (5th Cir. 2016) (holding a sentence disparity of 2 months
was reversible plain error); United States v. Price, 516 F.3d 285, 289–90 (5th
Cir. 2008) (holding a sentence disparity of 18 months was reversible plain
error).
      The degree of the district court’s error is significant here: Sanchez-
Arvizu was sentenced to double the top of the correct Guidelines range,
resulting in a sentencing disparity of 21 months. Thus, the district court’s
error compromised the fairness, integrity, or public reputation of judicial
proceedings. See Rosales-Mireles v. United States, 585 U.S. ____, 2018 WL
3013806, at *8 (June 18, 2018) (“[W]hat reasonable citizen wouldn’t bear a
rightly diminished view of the judicial process and its integrity if courts refused
to correct obvious errors of their own devise that threaten to require
individuals to linger longer in federal prison than the law demands?” (quoting
United States v. Sabillon–Umana, 772 F.3d 1328, 1333 (10th Cir. 2014)
(Gorsuch, J.))).
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                                  No. 16-41378
      The Government argues that Sanchez-Arvizu’s recidivistic behavior
counsels against our use of discretion here. However, a defendant’s criminal
history is not relevant to whether a plain procedural error in sentencing
proceedings “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Rosales-Mireles, 2018 WL 3013806, at *10 n.5. The
Government further contends that, under our precedent, reversal is not
warranted because the error does not “shock the conscience of the common
man, serve as a powerful indictment against our system of justice, or seriously
call into question the competence or integrity of the district judge.” See, e.g.,
United States v. Renteria-Martinez, 847 F.3d 297, 302 (5th Cir. 2017).
However, the Supreme Court recently rejected this “shock the conscience”
standard, holding that it is “unduly restrictive” and “burdensome” and alters
the fourth prong analysis articulated in Olano, 507 U.S. at 725. See Rosales-
Mireles, 2018 WL 3013806, at *6–8, 12. The Court explained that “[i]n the
ordinary case . . . the failure to correct a plain Guidelines error that affects a
defendant’s substantial rights will seriously affect the fairness, integrity, and
public reputation of judicial proceedings.” Id. at *12. Thus, we exercise our
discretion to correct the district court’s substantial error in this case.
                                        IV
      Accordingly, we VACATE Sanchez-Arvizu’s sentence and REMAND for
resentencing.




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