* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50683

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FELIPE CARDENAS-LANDIN

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:06-CR-2176-ALL

Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

Felipe Cardenas-Landin pleaded guilty to illegal reentry after deportation

in violation of 8 U.S.C. § 1326 and was sentenced to 30 months of imprisonment

and three years of supervised release. The district court applied a four-point

enhancement to his offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(E) based on

three convictions for misdemeanor crimes of violence. Cardenas-Landin did not

object to the enhancement.

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-50683

1 United States v. Booker, 543 U.S. 220 (2005).

2

Cardenas-Landin argues for the firsttime on appealthatthe district court

plainly erred in determining that his convictions for making a terroristic threat

and for assault were misdemeanor crimes of violence under § 2L1.2(b)(1)(E). He

argues that the district court’s error requires reversal as plain error.

The Government concedes that none of Cardenas-Landin’s prior

misdemeanor convictions are crimes of violence within the meaning of

§ 2L.12(a)(1)(E). However, the Government argues that Cardenas-Landin

cannot demonstrate that his substantial rights have been affected by the district

court’s error. The Government contends that based on Cardenas-Landin’s

extensive history of violence, the district court expressed a desire to incarcerate

him for a long time. The Government argues that the record reflects that the

district court would impose the same sentence on remand.

Cardenas-Landin argues in reply thatthe Government’s argument ignores

this court’s precedent. He contends that this court rejected the same argument

in United States v. Dentler, 492 F.3d 306 (5th Cir. 2007).

In United States v. Villegas, 404 F.3d 355, 362 (5th Cir. 2005), we

addressed review of a district court’s application of the Sentencing Guidelines

under a post-Booker1sentencing regime. We determined that Booker did not

excise 18 U.S.C. § 3742(f), which requires that a sentence imposed “as a result

of an incorrect application of the sentencing guidelines” be vacated and the case

remanded for further sentencing proceedings. Id. Concluding that the district

court plainly erred in calculating the guideline range, we vacated the defendant’s

sentence without considering the sentence’s ultimate reasonableness. Id. at

364-65.

In Dentler, the Government also conceded that the district court had

misapplied the Guidelines, resulting in an increase in the advisory guideline

range from 140-175 months to 210-262 months. The district court sentenced the
No. 07-50683

3

defendant to 240 months, the statutory maximum for the offense. 492 F.3d at

308-09. The Government argued that, based on comments made by the district

court at the sentencing hearing that it sought to impose the highest sentence

possible, the defendant could not show plain error. Id. at 313.

We rejected the Government’s argument, noting that the district court’s

error resulted in a sentencing range in which the lowest possible sentence was

65 months higher than the top of the correct range. We stated that “such a gap

affects his substantial rights,” citing Villegas. In Villegas, we held that because

the two sentencing ranges did not overlap, “the district court’s error necessarily

increased Villegas’s sentence and thus affected his substantial rights.” 404 F.3d

at 364. Villegas involved a misapplication of the Guidelines and a sentence

imposed within the incorrectly calculated guideline range under the then

mandatory scheme. Id. at 364-65. In Dentler, we applied Villegas to a sentence

imposed within the incorrectly calculated guideline range under the advisory

system, vacated the sentence, and remanded for resentencing. 492 F.3d at 313-

14.

In this case, the district court imposed a sentence at the top of the

incorrectly calculated advisory guideline range of 24 to 30 months. Without the

erroneous four-point enhancement, Cardenas-Landin’s offense level would have

been reduced from 10 to 6, and with a criminal history category of VI, his correct

guideline range would have been 12 to 18 months. U.S.S.G. Sentencing Table,

Ch. 5, Pt. A. The two ranges do not overlap. The district court did not depart

pursuant to the Guidelines, and it did not impose a non-guideline sentence.

Thus, there is no basis to conclude that the sentence did not “result” from the

misapplication of the Guidelines. See United States v. Duhon, 440 F.3d 711, 716

(5th Cir. 2006) (holding that non-guideline sentence did not result from the

Guidelines error), petition for cert. filed, (May 18, 2006) (No. 05-11144); United

States v. Tzep-Mejia, 461 F.3d 522, 526-27 (5th Cir. 2006) (distinguishing
No. 07-50683

4

between sentences imposed within the guideline range and non-guideline

sentences).

We hold that Cardenas-Landin has demonstrated plain error, and we

vacate his sentence and remand the case for resentencing.

SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.