                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 23, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-1392
          v.                                               (D. Colo.)
 ELIAS ESCALANTE-BENCOMO,                     (D.C. No. 1:11-CR-00285-REB-1)
 also known as Jose Guzman, also
 known as Arturo Gonzelez-Mendoza,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the parties’ briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Elias Escalante-Bencomo pleaded guilty to one count of illegal reentry, in

violation of 8 U.S.C. § 1326. On appeal, he claims the district court committed


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
plain error when it utilized U.S.S.G. § 2L1.2(b)(1)(A) in calculating his total

offense level. The government concedes the district court committed an error,

that is plain, and which affects Escalante-Bencomo’s substantial rights. It asserts

Escalante-Bencomo is not entitled to relief, however, because the error does not

seriously affect the fairness, integrity, or public reputation of judicial

proceedings. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), this court remands the matter to the district court to vacate Escalante-

Bencomo’s sentence and resentence him after considering a properly calculated

advisory guidelines range.

      In arriving at Escalante-Bencomo’s total offense level for purposes of the

sentencing guidelines, the Presentence Investigation Report (“PSR”) began with a

base offense level of eight. U.S.S.G. § 2L1.2(a) (setting out base offense level

for unlawfully entering or remaining in the United States). The PSR added

twelve levels pursuant to § 2L1.2(b)(1)(A), concluding Escalante-Bencomo’s

1992 Utah state conviction for attempted aggravated assault was a crime of

violence. 1 The PSR then subtracted three points for acceptance of responsibility.

Id. § 3E1.1. The PSR thus set Escalante-Bencomo’s total offense level at

seventeen. The PSR concluded Escalante-Bencomo had five criminal history



      1
       The PSR increased Escalante-Bencomo’s offense level by twelve, rather
than sixteen, because his conviction for attempted aggravated assault was too old
to receive criminal history points. U.S.S.G. § 2L1.2(b)(1)(A); id. § 4A1.2(e).

                                          -2-
points, resulting in a criminal history category of III. In calculating Escalante-

Bencomo’s criminal history category, the PSR assigned no criminal history points

to a number of prior convictions, concluding those convictions were too old to

receive points under § 4A1.2(c). With a total offense level of seventeen and a

criminal history category III, the PSR calculated Escalante-Bencomo’s advisory

guidelines range as thirty to thirty-seven months. Id. Ch. 5, Pt. A (sentencing

table). At the sentencing hearing, both the government and Escalante-Bencomo

indicated they had reviewed the PSR and had no objections or corrections to the

calculations set out therein. The district court sentenced Escalante-Bencomo to a

term of imprisonment of thirty-seven months, a sentence at the top of the range

set out in the advisory Sentencing Guidelines.

      Escalante-Bencomo asserts the district court committed plain error when it

treated his 1992 Utah state attempted-aggravated-assault conviction as a crime of

violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A). 2 Instead, according to

Escalante-Bencomo, the relevant Utah statutes make clear attempted aggravated




      2
        As he concedes in his opening brief on appeal, this court must apply plain
error review because he did not raise this issue before the district court. Fed. R.
Crim. P. 52(b). Under plain error review, this court will reverse only if all of the
following conditions are met: (1) there is error; (2) the error is plain; and (3) the
error affects substantial rights. United States v. Zubia-Torres, 550 F.3d 1202,
1208 (10th Cir. 2008). If those three criteria are satisfied, this court “may
exercise discretion to correct the error if it seriously affects the fairness, integrity,
or public reputation of the judicial proceedings.” Id.

                                           -3-
assault is a misdemeanor. 3 Escalante-Bencomo further argues that the district

court’s plain error affects his substantial rights because the error led to the

application of the wrong advisory guidelines range. See United States v.

Gonzalez-Huerta, 403 F.3d 727, 739 n.11 (10th Cir. 2005) (en banc) (holding that

district court’s use of the wrong guideline “constitutes a fundamental error

affecting substantial rights within the meaning of Rule 52(b), thereby satisfying

the third prong of the plain error inquiry” (quotation omitted)). Finally,

Escalante-Bencomo asserts this court should exercise its discretion to correct the

district court’s error because that error seriously affects the fairness and integrity

of these judicial proceedings. In particular, Escalante-Bencomo argues that

without the erroneous twelve-level increase to his offense level under

§ 2L1.2(b)(1)(A), his base offense level would have been subject to, at most, an



      3
        As the government concedes, Escalante-Bencomo’s assertion in this regard
is correct. To resolve whether his Utah state conviction for attempted aggravated
assault is a felony for purposes of the guidelines, we must first determine the
maximum sentence he could have received under Utah law. U.S.S.G. § 2L1.2
cmt. n.2 (defining a felony as “any federal, state, or local offense punishable by
imprisonment for a term exceeding one year”). In Utah, the penalty for an
attempt derives from the classification of the completed crime. During the
relevant time period, Utah classified the completed offense of aggravated assault
as a third degree felony. Utah Code Ann. § 76-5-103(2) (1989). An “attempt to
commit . . . [a] felony of the third degree” was “a class A misdemeanor.” Id.
§ 76-4-102(4) (1983). The maximum sentence for a class A misdemeanor in Utah
in 1992 was “a term not exceeding one year.” Id. § 76-3-204 (2012). Because
attempted aggravated assault was not punishable by a term of imprisonment that
exceeded one year, it is not a felony for purposes of § 2L1.2(b)(1). U.S.S.G.
§ 2L1.2 cmt. n.2.

                                          -4-
eight-level increase under U.S.S.G. § 2L1.2(b)(1)(C). This would result in a total

offense level of thirteen, which when combined with a criminal history category

III results in an advisory guideline range of eighteen to twenty-four months.

U.S.S.G. Ch. 5, Pt. A (sentencing table). According to Escalante-Bencomo, this

drastically reduced advisory guidelines range is sufficient to satisfy the fourth

prong of plain error review. United States v. Meacham, 567 F.3d 1184, 1190-91

(10th Cir. 2009) (holding that in the context of a challenge to a sentence, an

appellant can satisfy the fourth prong of plain error review by demonstrating a

strong possibility of a significantly lower sentence).

      In response, the government concedes Escalante-Bencomo has satisfied the

first three requirements of plain error review. 4 It asserts, however, that he cannot

satisfy the fourth prong of plain error review because he has failed to demonstrate

a “correct application of the sentencing laws would likely significantly reduce the



      4
        Despite this well-taken concession on the part of the government, it
nevertheless argues this court’s decisions in United States v. Zubia-Torres, 550
F.3d 1202, 1210 (10th Cir. 2008) and United States v. Svacina, 137 F.3d 1179,
1187 (10th Cir. 1998) preclude Escalante-Bencomo from obtaining relief at the
fourth prong of plain error review. The government’s arguments in this regard
are unconvincing. The cases cited by the government are third-prong cases,
which involve situations where an appellant’s failure to object left the record
devoid of factual development needed to resolve whether an alleged error affected
the appellant’s substantial rights. Zubia-Torres, 550 F.3d at 1209-10; Svacina,
137 F.3d at 1186-87. In this case, on the other hand, the factual record is clear
and undisputed: Escalante-Bencomo was convicted in Utah state court in 1992 on
a single charge of attempted aggravated assault. It is also clear and undisputed
that this crime is a misdemeanor, not a felony.

                                         -5-
length of the sentence.” United States v. Brown, 316 F.3d 1151, 1161 (10th Cir.

2003). In so arguing, the government notes the district court made a significant

sentencing error favoring Escalante-Bencomo and, thus, his correctly calculated

advisory guidelines range is not nearly as low as Escalante-Bencomo contends.

      In particular, in calculating Escalante-Bencomo’s criminal history category,

the PSR did not attribute any criminal history points to Escalante-Bencomo’s

1996 Utah state burglary conviction. In support of this decision, the PSR cited

U.S.S.G. § 4A1.2(e)(3). Sections 4A1.1(a) and 4A1.2(e)(1) make clear, however,

that the PSR should have attributed three criminal history points to Escalante-

Bencomo. 5 With those three extra criminal history points, Escalante-


      5
        When he was convicted of burglary in 1996, the state court imposed an
indeterminate sentence of zero to five years’ imprisonment. Thus, the sentence
exceeded thirteen months. U.S.S.G. § 4A1.2 cmt. n.2 (“For the purposes of
applying § 4A1.1(a), (b), or (c), the length of a sentence of imprisonment is the
stated maximum (e.g., . . . in the case of an indeterminate sentence of one to five
years, the stated maximum is five years . . . .”). “Any prior sentence of
imprisonment exceeding [thirteen months] that was imposed within fifteen years
of the defendant’s commencement of the instant offense is counted.” Id.
§ 4A1.2(e)(1). Because Escalante-Bencomo commenced the instant federal
immigration offense no later than June 27, 2011, when he was discovered in the
Mesa County Jail, and because the sentence on his Utah state burglary conviction
was “imposed” on December 13, 1996, the PSR should have assessed three
criminal history points to Escalante-Bencomo. Id. §§ 4A1.1(a), 4A1.2(e)(1).

       Although Escalante-Bencomo does not concede the propriety of the
government’s calculations in this regard, he also does not contest them.
Appellant’s Reply Br. at 8 & n.3. This seems a wise choice, as this court’s
review of the guidelines manual leaves little doubt the PSR erred in failing to
attribute to Escalante-Bencomo criminal history points for his 1996 Utah state
                                                                      (continued...)

                                        -6-
Bencomo’s criminal history category becomes IV. Id. Ch. 5 Pt. A (sentencing

table). A criminal history category IV, coupled with a total offense level of

thirteen, results in an advisory guidelines range of twenty-four to thirty months’

imprisonment. Id. Finally, according to the government, the mere seven-month

difference between the high-end of the properly calculated advisory range

(twenty-four to thirty months) and the advisory range applied by the district court

(thirty to thirty-seven months) is not sufficient to demonstrate a likelihood of a

significantly lower sentence on remand.

      The government’s assertions regarding the significance of the seven-month

difference at issue in this case are at odds with this court’s precedent. In United

States v. Cordery, the government argued the appellant had not satisfied the

fourth prong of plain error review because the district court’s error resulted in, at

most, an additional five months’ imprisonment. 656 F.3d 1103, 1108 (10th Cir.

2011). We rejected this contention, concluding as follows: “An additional five

months’ imprisonment is significant in the context of a 51-month sentence—it is

nearly a ten percent increase.” Id. That being the case, it is easy to conclude the

relatively larger percentage increase at issue here is likewise significant, thereby




      5
       (...continued)
burglary conviction. Accordingly, for purposes of resolving this appeal, this
court accepts the government’s sentencing calculations.

                                          -7-
satisfying Escalante-Bencomo’s burden under the fourth prong of plain error

review. 6

       Because Escalante-Bencomo has satisfied his burden of demonstrating each

of the four prongs of plain error review, this court remands this case to the

district court to vacate Escalante-Bencomo’s sentence and resentence him after

having considered a properly calculated advisory guidelines range. 7 Given that

Escalante-Bencomo has already served a substantial portion of his sentence, we

direct the issuance of the mandate forthwith and urge the parties to cooperate so

the matter can be resolved on remand in a timely fashion.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge


       6
        In so ruling, this court is cognizant of the significant concern expressed by
the district court at the sentencing hearing regarding Escalante-Bencomo’s
extensive history of immigration violations and criminal conduct and the district
court’s statement that it considered varying upward to account for that history.
Critically, however, the district court ultimately decided the appropriate course of
action was to impose a sentence within the advisory range set out in the
guidelines. Having reviewed the entire record, we conclude the district court’s
ambivalent statements at sentencing do not overcome the significant and obvious
error in calculating Escalante-Bencomo’s advisory guidelines range. Cf. United
States v. Johnson, 414 F.3d 1260, 1264-65 (10th Cir. 2005). That is, there is
sufficient reason to think on remand the district court might well adhere to its
decision to impose a sentence within a properly calculated advisory guideline
range.
       7
      Escalante-Bencomo’s unopposed motions to substitute counsel and to
supplement the record are hereby granted.

                                         -8-
