IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51238

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ERIC STEVEN PUTNAM, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before JOLLY, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:

Eric Putnam appeals his 15-year term of supervised release on the 

grounds that the district court erroneously treated his conviction for failure to 

register as a sex offender as a “sex offense.” He also challenges the special 

condition of supervised release that prohibits him from consuming alcohol. For 

the reasons explained below, we VACATE the term of supervised release and 

REMAND for resentencing.

I.

Putnam pleaded guilty to failure to register as a sex offender in violation 

of 18 U.S.C. § 2250. That violation carries a statutory range for supervised 

release of five years to life. 18 U.S.C. § 3583(k). The Presentence Investigation 

United States Court of Appeals

Fifth Circuit

FILED

November 25, 2015

Lyle W. Cayce

Clerk

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No. 14-51238

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Report (PSR) calculated the Guidelines range for supervised release the same 

as the statutory range by treating Putnam’s conviction as a sex offense under 

section 5D1.2(b)(2) of the Guidelines. It also recommended a special condition 

prohibiting him from consuming alcohol while on supervised release. The 

district court adopted the PSR and sentenced Putnam to ten months in prison 

followed by a supervised release term of 15 years with, among other conditions, 

a condition prohibiting alcohol consumption. 

II.

Because Putnam did not object to either the length of the supervised 

release term or the alcohol condition in the district court, we review for plain 

error. See United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). Putnam 

therefore must show a plain error that affected his substantial rights. See 

United States v. Escalante–Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). 

If he can do so, we have discretion to correct the error only if it seriously affects 

the fairness, integrity, or public reputation of the proceeding. See id. 

The government concedes that a plain error occurred with respect to the 

Guidelines calculation for the length of Putnam’s supervised release term.

This court has held that failure to register under the Sex Offender Registration 

and Notification Act does not qualify as a sex offense under section 5D1.2(b)(2) 

of the Guidelines. See United States v. Segura, 747 F.3d 323, 329–31 (5th Cir. 

2014). Furthermore, amendments to the Guidelines, which took effect prior to 

Putnam’s sentencing, revised the commentary accompanying 

section 5D1.2(b)(2) to clarify that failure to register as a sex offender does not 

constitute a sex offense. U.S. Sentencing Guidelines Manual, Supp. to App’x

C, Amend. 786, at 80–82 (U.S. Sentencing Comm’n 2014). The Guidelines 

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recommendation for the length of supervised release is thus just five years, 

rather than the range of five years to life listed in Putnam’s PSR.1 

Putnam has also met his burden of showing that the error affected his 

substantial rights. He has demonstrated “a reasonable probability that, but 

for the district court’s misapplication of the Guidelines, he would have received 

a lesser sentence.” See United States v. Mudekunye, 646 F.3d 281, 289 (5th 

Cir. 2011) (per curiam). Absent other evidence indicating that the Guidelines 

range did not influence the sentence, a defendant meets this burden “when (1) 

the district court mistakenly calculates the wrong Guidelines range, (2) the 

incorrect range is significantly higher than the true Guidelines range, and (3) 

the defendant is sentenced within the incorrect range.”2 Id. Putnam’s case 

meets all three requirements as the 15-year term of supervised release, which 

 

1 The Guidelines provide that for all offenses the term of supervised release may not 

be less than the statutory minimum, and that for “sex offenses” the term may be up to life. 

U.S.S.G. § 5D1.2(b)(2), (c). Thus, if failure to register were a sex offense, the Guidelines range 

would be five years to life. See 18 U.S.C. § 3583(k) (setting minimum supervised release term 

for a violation of section 2250 at five years). 

In contrast, when failure to register is not construed as a sex offense, the 

recommended range under the Guidelines is determined by reference to the severity of the 

offense. Failure to register has a ten-year maximum term of imprisonment, see 18 U.S.C. 

§ 2250(a), making it a Class C felony. See 18 U.S.C. § 3559(a)(3) (classifying an offense with

a maximum imprisonment term of at least 10 years but less than 25 years as a Class C 

felony). Under section 5D1.2(a)(2), the Guidelines recommend a supervised release term 

lasting between one and three years for a Class C felony. But because this directly conflicts 

with the statutory minimum, the statutory minimum of five years becomes the Guidelines 

range under section 5D1.2(c).

2 The Supreme Court recently granted certiorari the review this court’s standard for 

assessing the “substantial rights” requirement of plain error review. See United States v. 

Molina-Martinez, 588 Fed. App’x 333 (5th Cir. 2014), cert. granted, 84 U.S.L.W. 3163 (U.S. 

Oct. 1, 2015). But that case involves this court’s more stringent standard for demonstrating 

that an error affected the defendant’s substantial rights when the defendant was sentenced 

within the overlap between the incorrect and correct Guidelines ranges. See Appellant’s 

Petition for Writ of Cert., Molina-Martinez v. United States, No. 14-8913, 2015 WL 5766728 

(U.S. Mar. 16, 2015), available at http://www.scotusblog.com/wp-content/uploads/

2015/10/2015_03_16_Molina-Martinez_Saul_CRTPET.pdf. That standard is not implicated 

here because Putnam was sentenced outside the correct Guidelines range and thus receives

the benefit of the presumption. 

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was within the erroneous “five years to life” range, is three times the 

recommended term under the correct Guidelines calculation. 

The Government does not provide much argument that this presumption 

is rebutted by evidence from the sentencing hearing, although it relies heavily 

on Segura throughout its briefing. In Segura, we held that the Government 

did overcome the presumption that plain error affected the defendant’s 

substantial rights even though he received a lifetime term of supervised 

release that greatly exceeded the Guidelines range of five years. The 

additional evidence that persuaded us that the defendant would have received 

the same term under the correct Guidelines range was the district court’s 

emphasis on the defendant’s extensive, three-decade long criminal history 

involving sexual contact offenses as well as the fact that it did not refer to the 

Guidelines during sentencing. 747 F.3d at 330–31. In contrast, Putnam has

only one prior offense, which did not involve contact, and the district court 

referred to the low end of the Guidelines range for Putnam’s custodial sentence, 

indicating that it was generally relying on the Guidelines at the sentencing 

hearing. The record from the sentencing hearing therefore does not rebut the 

presumption of prejudice that attaches to the term of supervised release that 

was three times as long as the correct Guidelines range.

That leaves the question whether the plain error affects the fairness, 

integrity, and reputation of the judicial proceeding. Although this final inquiry 

is far from automatic when the other requirements for correcting plain error 

are met, we have often exercised our discretion to correct error when it resulted

in a custodial sentence in excess of the correct Guidelines recommendation. 

See, e.g., United States v. Hernandez, 690 F.3d 613, 621–22 (5th Cir. 2012)

(exercising discretion to vacate a prison sentence 12 months above the correct 

Guidelines range); Mudekunye, 646 F.3d at 290–91 (same for a 19-month 

disparity); United States v. John, 597 F.3d 263, 285–86 (5th Cir. 2010) (same 

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for 21-month disparity). Miscalculation of the Guideline range for a term of 

supervised release is less common. But we have recognized that supervised 

release terms also constitute a substantial restraint on liberty by correcting in 

the plain error posture statutory errors that substantially affected this aspect 

of sentencing. See, e.g., United States v. Segura, 61 F. App’x 119, at *1 (5th 

Cir. 2003) (“This court will correct overlong terms of supervised release on 

plain-error review.”); United States v. Cooper, 274 F.3d 230, 244 (5th Cir. 2001)

(correcting an overlong term of supervised release outside the statutory 

maximum); United States v. Meshack, 225 F.3d 556, 578 (5th Cir. 2000) (the 

same), amended on reh’g in part on other grounds by 244 F.3d 367 (5th Cir. 

2001). We thus conclude that the error in Putnam’s case that resulted in a 

supervised release term ten years above the Guidelines range satisfies all the 

plain error inquiries and exercise our discretion to correct it.3

Because we vacate the supervised release term as a result of the error in 

the Guidelines calculation of its length, we need not reach the question of 

whether the special condition prohibiting alcohol consumption was also in 

plain error. When imposing the new term of supervised release, the district 

court may again consider the propriety of the alcohol prohibition.

We VACATE Putnam’s sentence and REMAND for resentencing 

consistent with this opinion. 

 

3 After it found that the erroneous Guideline calculation did not substantially affect

the defendant’s substantial rights, Segura also noted that the defendant’s “23-year criminal 

history” and multiple failures to register would have led the court to not exercise its discretion 

to correct the error. 747 F.3d at 331. As discussed above, the defendant in this case does not 

have nearly as extensive a criminal history.

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