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

No. 15

- 40461

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v.
JOSE NAPOLEON ALFARO

- ENRIQUEZ,

a lso known as Jose Napoleon Alfaro

- Henriquez , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:13

- CR

- 1889

Before JOLLY and JONES, Circuit Judges, and MILLS ∗ , District Judge

. EDITH H. JONES, Circuit Judge : ∗ ∗ This appellant was sentenced to 41 months imprisonment for illegal
reentr y after the district court removed one criminal history point from his United States Sentencing Guidelines (“ U

. S

. S

. G

. ”) sentence calculation and then departed downward from a sentencing range of 46

- 57 months. The original range was calculated using a 16

- level enhancement for a prior “felony”

∗ District Judge of the Northern District of Mississippi, sitting by designation.

∗ ∗ 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 1, 2016

Lyle W. Cayce Clerk Case: 15-40461 Document: 00513364305 Page: 1 Date Filed: 02/01/2016No. 15

- 40461

2 conviction in California for willful infliction of corporal injury. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (crime of violence). On appeal, for the first time, Alfaro

Enriquez argues that t he court committed “plain error ” in failing to recognize that the California conviction was actually for a misdemeanor offense, which would justify only a 12

- level enhancement. Using this metric, the sentencing range would be 30

- 37 months. The appeal thus raises the familiar questio ns whether the court committed “plain error” in accepting the felony characterization of th e crime; whether the defendant’ s substantial rights were adversely affected; and whether this court should exercise its discretion to require resentencing in order to protect the fairness, integrity or public rep utation of federal proceedings. See United States v. Villegas , 404 F.3d 355, 358

- 59 (5th Cir. 2005) (per curiam) . We review these questions de novo. Compelled to follow this
court ’ s case law, we must reverse and remand for resentencing. First, we ar e unpersuaded by the government’s defense of the “ felony ” characterization on appeal, which stands contrary to its trial court concession that the conviction was a misdemeanor offense in California law. Charact erization is at bottom a federal question concerning the interpretation of the Guidelines, but this court has held that state law may inform that interpretation. See U nited States v. Rivera

- Perez , 322 F.3d 350, 352 (5th Cir. 2003) (per curiam) . Stripped of sta te law complexities concerning “wobbler” offenses that may be punished as felonies or misdemeanors, this appellant’ s California case proceeded as a misdemeanor under the misdemeanor versio n of California Penal Code § 273.5. At no point was the charg ed offense treated as a felony by the prosecution or the state court, and Alfaro

- Enriquez never faced the possibility of receiving a sentence of i mprisonment exceeding one year. He received only probation. According to California Penal Code § 17(b) (4), w hen the prosecutor files “ a complaint specifying tha t the offense is Case: 15-40461 Document: 00513364305 Page: 2 Date Filed: 02/01/2016No. 15

- 40461

3 a misdemeanor,” without o bjection by the defendant, the “wobbler” offense is converted to a misdemeanor “for all purposes.” Because this was indeed a misdemeanor offense under Californi a law, and it does not qualify otherwise as a crime of violence for guidelines purposes, the court’ s error in apply ing a
16

- level enhancement was “ plain. ” Second, the “plain” error affected this defendant’ s substantial righ ts because the gap between the fe lony

- enhanced sentencing range and the lesser

enhanced range was significant. Moreover, the court’ s approach to sentencing, which yielded a downward departure from the wrong range, may indicate a disposition toward even greater clemency with a lowered sen tencing range. There is a “ reasonable probability t hat, but for the district court’ s error, [Alfaro

- Enriquez] would have received a lower sentence.” United States v.
Davis , 602 F.3d 643, 647 (5th Cir. 2010); se e also United States v. Medina

Torres , 703 F.3d 770, 778 (5th Cir. 2012) (substantial rights were affected by a
9

- 15 month difference in the correct and incorrect guidelines ranges). Finally, and this is the closest question, we must be guided by this court’ s interpretation of Puckett v. United Sta tes , 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009), in interpreting the final s tandard for plain error relief. Although it is never required, see United States v. Ellis , 564 F.3d 370, 378

- 79 (5th Cir. 2009), in similar cases to this one, we have ordered resentencing. See, e.g. , United States v. McCann , 613 F.3d 486, 503

- 04, 503 n.10 (5th Cir. 2010). We therefore exercise our discretion to order remand for resentencing because of the sizable gap between the two sentencing ranges , the district court’ s be lief that his criminal history was “over

- represented” by the Pre

- Sentence Report (“ PSR ”) , and the absence of any firm statement from the court about its intention to impose a 41

- month sentence irrespective of the guidelines range. For these reasons, the sentence is VACATED and REMANDED for resentencing. Case: 15-40461 Document: 00513364305 Page: 3 Date Filed: 02/01/2016