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

Appeals 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 term of 

* Pursuant to 5TH CIR. 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 5TH 

CIR. 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: 02/27/2014
No. 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-Martinez, 700 F.3d 148, 153 (5th Cir. 2012), cert. denied, 133 

S. Ct. 1276 (2013). 

As the Government concedes, the district court erred in calculating 

Villegas-Espinoza’s criminal history category, and the error was clear or 

obvious. The presentence report (PSR) provides that on May 2, 2001, VillegasEspinoza 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 not exceed one year and one month. Thus, the relevant dates

for purposes of U.S.S.G. § 4A1.2(e) were the dates of the original sentences. 

See § 4A1.2(k)(2)(C); United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 

2006). Because Villegas-Espinoza’s original 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; ArvisoMata, 442 F.3d at 385.

In the absence of the four criminal history 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 VillegasEspinoza’s 70-month sentence exceeds the top of the correct guidelines range 

2

 Case: 12-51148 Document: 00512546299 Page: 2 Date Filed: 02/27/2014
No. 12-51148

by 13 months. Further, it is not apparent from the record that VillegasEspinoza 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 regardless 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. Mudekunye, 646 F.3d 281, 289-91 (5th 

Cir. 2011); United States v. John, 597 F.3d 263, 285 (5th Cir. 2010). Finally, 

the significant disparity between the sentence imposed and the correct 

guidelines 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. Accordingly, 

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).

3

 Case: 12-51148 Document: 00512546299 Page: 3 Date Filed: 02/27/2014