### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 51148 Summary Calendar
UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. LORENZO VILLEGAS

- ESPINOZA , Defendant

- Appellant Appeal s from the United States District Court for the Western District of Texas USDC No. 3:12

- CR

- 1493

- 1
Before DeMOSS, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * Lorenzo Villegas

- Espinoza appeals the 70

- month sentence imposed following his guilty plea conviction for illegal reentry following deportation in violation of 8 U.S.C. § 1326. He contends that the district court plainly erred when it assessed four criminal history points for two of his prior convictions because the original sentences were imposed more than ten years prior to his commission of the instant illegal reentry offense and the total te rm of

* Pursuant to 5 TH C IR . R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 27, 2014 Lyle W. Cayce Clerk Case: 12-51148 Document: 00512546299 Page: 1 Date Filed: 02/27/2014No. 12

- 51148 imprisonment on each conviction did not exceed one year and one month. Because Villegas

- Espinoza did not object to the calculation of his criminal history category in the district court , we review for plain error

. See United States v. Avalos

- Martin ez , 700 F.3d 148, 153 (5th Cir. 2012), cert. denied , 133 S. Ct. 1276 (2013). As t he Government concedes , the district court erred in calculating Villegas

- Espin oza’s criminal history category, and the error was clear or
o bvious. The presentence report (PSR) provides that on May 2, 2001, Villegas

Espinoza pleaded guilty to disorderly conduct

— unreasonable noise and was sentenced to 30 days of imprisonment and 12 months of probation. On May 2, 2002, he pleaded guilty to driving while ability impaired with a prior DUI and was sentenced to 180 days of imprisonment and 24 months of probation. Although Villegas

- Espinoza’s probation sentences were revoked on June 18, 2003, and June 19, 2003, respectively, the total term of imprisonment on each conviction did n ot exceed one year and one month. Thus, the relevant date s for purposes of U.S.S.G. § 4A1.2(e) w ere the date s of the original sentence s. See § 4A1.2(k)(2)(C); United States v. Arviso

- Mata , 442 F.3d 382, 385 (5th Cir. 2006). Because Villegas

- Espinoza’s o riginal sentences were imposed more than ten years before his illegal reentry on May 31, 2012, they should not have been counted. See § 4A1.2(e)(1)

- (3); Avalos

- Martinez , 700 F.3d at 153; Arviso

Mata , 442 F.3d at 385. In the absence of the four criminal h istory points, Villegas

- Espinoza’s criminal history category would have been III. With a total offense level of 21, his guidelines imprisonment range would have been 46 to 57 months, rather than the 70 to 87

- month range calculated by the district court. There is no overlap between the correct and incorrect guidelines ranges, and Villegas

Espinoza’s 70

- month sentence exceeds the top of the correct guidelines range

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- 51148 by 13 months. Further, it is not apparent from the record that Villegas

Espinoza would have received an above

- guidelines sentence of 70 months of imprisonment had the district court correctly calculated his criminal history category. Although the district court noted that Villegas

- Espinoza had an extensive criminal history, that 11 of his prior convictions had not been assessed criminal history points, and that a downward variance was not appropriate, the district court sentenced him at the bottom of the incorrect guidelines range and did not state that it would have imposed the same sentence reg ardless of the applicable guidelines range. Under these circumstances, a reasonable probability exists that, but for the district court’s misapplication of the Guidelines, Villegas

- Espinoza would have received a lesser sentence. See United States v. Mude kunye , 646 F.3d 281, 289

- 91 (5th Cir. 2011) ; United States v. John , 597 F.3d 263, 285 (5th Cir. 2010). Finally, t he significant disparity between the sentence imposed and the correct g uidelines range warrants the exercise of our discretion to correct the error. See Mudekunye , 646 F.3d at 291 ; John , 597 F.3d at 286

- 89 . A ccordingly, Villegas

- Espinoza’s sentence is VACATED , and the case is REMANDED for resentencing

. Because we vacate and remand for resentencing, we need not address Villegas

- Espinoza’s argument that the sentence is substantively unreasonable because it was greater than necessary to accomplish the sentencing goals set forth in 18 U.S.C. § 3553(a).

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