IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20872

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALVARO PIZANO-MURILLO, also known as Alvaro Murillo Pizano, also known

as Alvaro Pizano Murillo, also known as Alvaro P. Murillo, also known as Alvaro

Murillo,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CR-345-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Alvaro Pizano-Murillo (Pizano) appeals the sentence imposed following his

guilty plea conviction for being unlawfully present in the United States following

removal. The district court applied an upward departure from the guidelines

sentence range based upon the inadequacy of Pizano’s criminal history category,

and it sentenced Pizano to 28 months of imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2011

Lyle W. Cayce

Clerk

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.

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No. 09-20872

For the first time on appeal, Pizano argues that the district court erred by

applying an upward departure without giving him advance notice that it was

considering an upward departure. He maintains that the upward departure

made the sentence excessive. Because Pizano did not raise this issue in the

district court or request a continuance, we review for plain error only. See

United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002).

In the presentence report (PSR), the probation officer identified the

inadequacy of Pizano’s criminal history category as a possible ground for an

upward departure due to Pizano’s prior deportations and Pizano’s large number

of prior convictions that did not increase his criminal history category. This was

sufficient notice that the district court was considering an upward departure,

and the district court did not commit error, plain or otherwise, by applying an

upward departure without giving Pizano sufficient notice. See id. at 219-20.

Also for the first time on appeal, Pizano argues that the district court

erred by applying an upward departure based upon the inadequacy of his

criminal history category without certified copies of the judgments of his prior

convictions being introduced into evidence. He maintains that he would have

had notice that the Government was seeking an upward departure if it had

introduced the judgments into evidence. As Pizano did not raise this issue in the

district court, we review for plain error only. See United States v. Jenkins, 487

F.3d 279, 281 (5th Cir. 2007).

The district court may not rely upon the description of a prior offense

contained in the PSR in order to determine whether the prior offense is a type

of offense meriting certain sentence enhancements. United States v.

Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005). However, if a defendant does

not rebut the information contained in the PSR, the district court may rely upon

the PSR to prove the existence of the defendant’s prior convictions. United

States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004). As Pizano did not present

any evidence rebutting the evidence of his prior convictions contained in the

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PSR, the district court did not plainly err by relying upon the PSR to prove the

existence of his prior convictions. See id.

Pizano’s appointed counsel previously filed a motion to withdraw pursuant

to Anders v. California, 386 U.S. 738 (1967). In denying that motion, this court

ordered counsel to file a brief on the merits of the issue whether the district

court erred under Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), by

applying an eight-level enhancement for Pizano’s having been removed

subsequent to an aggravated felony conviction pursuant to U.S.S.G.

§ 2L1.2(b)(1)(C) based upon Pizano’s multiple prior Tennessee convictions for

simple possession of a controlled substance. Despite this court’s order, counsel

did not raise this issue in the merits brief that she filed. Nevertheless, because

the Government concedes error and to further the interests of justice, we will

consider the issue.

The district court rejected Pizano’s objection to the eight-level

enhancement based upon the then-binding precedent of this court. See United

States v. Cepeda-Rios, 530 F.3d 333, 334-36 (5th Cir. 2008). In CarachuriRosendo, the Supreme Court abrogated this court’s holding in Cepeda-Rios, and

it held that a second state offense for simple drug possession is not an

aggravated felony if that conviction “has not been enhanced based on the fact of

a prior conviction.” Carachuri-Rosendo, 130 S. Ct. at 2589. The record, as

supplemented by the Government, shows that Pizano’s prior convictions for

simple possession of a controlled substance were not enhanced based on the fact

of a prior conviction. Accordingly, as the Government concedes, the application

of the enhancement was erroneous.

When a procedural error occurs at sentencing, a remand is required unless

the error was harmless. United States v. Delgado-Martinez, 564 F.3d 750, 752-

53 (5th Cir. 2009). In this case, nothing in the record indicates that the district

court “had a particular sentence in mind and would have imposed it,

notwithstanding the error.” United States v. Ibarra-Luna, 628 F.3d 712, 718

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(5th Cir. 2010) (internal quotation marks and citation omitted). Furthermore,

as the sentence was an upward departure based on the Guidelines as opposed

to an upward variance outside of the Guidelines, the sentence appears to have

been directly influenced by the incorrectly calculated guidelines sentence range.

Thus, as the Government concedes, the error was not harmless. See id. at 718-

19. Accordingly, we vacate Pizano’s sentence and remand this case to the

district court for resentencing.

Pizano has filed a pro se motion complaining about the performance of his

appointed counsel and requesting that this court order counsel to provide him

with documents from his case. However, “[u]nless specifically directed by court

order, pro se motions, briefs or correspondence will not be filed if the party is

represented by counsel.” 5TH CIR. R. 28.6. Therefore, we will not consider the

motion. If Pizano believes that his counsel is not providing adequate

representation, he may move for the appointment of substitute counsel in the

district court on remand.

Appointed counsel failed to follow this court’s previous order by not

briefing the issue whether the application of the eight-level enhancement under

§ 2L1.2(b)(1)(C) was erroneous, and counsel filed a brief that is wholly

inadequate. Counsel Cheryl Harris Diggs is ordered to show cause within 30

days why she should not be denied payment for services rendered and expenses

incurred in relation to this appeal for failing to follow this court’s previous order

and for filing an inadequate brief.

VACATED AND REMANDED FOR RESENTENCING; MOTION FOR

PRODUCTION OF DOCUMENTS DENIED; SHOW CAUSE ORDER ISSUED.

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