### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-10357

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. MIGUEL ANGEL ALEGRIA-ALVAREZ, Defendant - Appellant

Appeal from the United States District Court for the Northern District of Texas

6:09-CR-42-1

Before BENAVIDES, STEWART, and GRAVES, Circuit Judges. PER CURIAM: * Miguel Angel Alegria-Alvarez (“Al e gria-Alvarez”) pleaded guilty to one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202(3) & (4). At sentencing, the district court adopted the pre-sentence report (“PSR”) without objection from either party, and sentenced AlegriaAlvarez to seventy-one months imprisonment. Alegria-Alvarez now appeals his sentence based on an incorrect calculation of the advisory Guideline range. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 20 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-10357 Document: 00511793711 Page: 1 Date Filed: 03/20/2012No. 10-10357 FACTS AND PROCEDURAL HISTORY On September 22, 2009, Alegria-Alvarez was indicted on one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202(3) & (4). Subsequently, Alegria-Alvarez pleaded guilty and a pre-sentence investigation was ordered. At sentencing, Alegria-Alvarez was assigned a tot al offense level of twenty-one. Alegria-Alvarez received a total criminal history score o f eight, which resulted in a criminal history category IV. Based on these calculations, Alegria-Alvarez's advisory Guideline range of imprisonment was fifty-seven to seventy-one months. Neither the Government nor Alegria-Alvarez objected to the PSR’s calculation of the advisory Guideline range. Thereafter, the district court adopted the PSR's findings and conclusions, and sentenced Alegria-Alvarez to seventy-one mon t hs imprisonment. After imposing the seventy-one month sentence, t h e district court judge stated, "I believe this sentence does adequately a d dr e s s the sentencing objectives of punishment and deterrence, as well as meeting those other factors as set forth in Title 18, United States Code, S e c tion 3553(a)." Aggrieved by the district court's sentence, Alegria-Alvarez appealed. STANDARD OF REVIEW Where the defendant fails to object to the PSR's advisory Guideline range,

we review for plain error. See United States v. John , 597 F.3d 263, 282 (5th Cir. 2 0 1 0 ). To establish reversible plain error, the defendant must show an error that is clear or obvious and that affects his substantial rights. Puckett v. United States , 1 2 9 S

. C t

. 1423, 1429 (2009). If the defendant can make this showing, "this court has discretion to correct that error, and generally will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Mudekunye , 646 F.3d 28 1 , 287 (5th Cir. 2011) (citing Puckett , 129 S. Ct. at 1429).

2 Case: 10-10357 Document: 00511793711 Page: 2 Date Filed: 03/20/2012No. 10-10357 DISCUSSION O n a p p eal, Alegria-Alvarez contends that the district court committed reversible plain error by adopting the PSR because it incorrectly calculated his total criminal history score by treating his prior convictions as separate offenses. The Government argues that, although it was obvi o u s e rror, the error did not affect Alegria-Alvarez’s substantial rights because the district court made clear that the sentence was based upon the factors set forth in § 3553(a), and not the Guidelines range. Because th e G overnment concedes that the error was obvious,

we need not address this issue here. See United States v. Blocker , 612 F.3d 413, 416 (5th Cir. 2010), cert. denied , 131 S. Ct. 623 (2010); see also United States v. Masters , 392 F. App'x 329, 332 (5th Cir. 201 0). In determining w h e t her a sentencing error affects the defendant's substantial rights, the defendant bears the burden of showing "a reasonable probability that, but for the district court's misapplication of the Guidelines, he would have received a lesser sentenc e ." Blocker , 612 F.3d at 416-17 (quoting United States v. Villegas , 404 F.3d 355, 364 (5th Cir. 2005)). Absent additional evidence, a defendant satisfies this burden where "(1) the district court mistakenly calculates the wrong Guidelines range; (2) the incorr e c t range is significantly higher than the true Guideli n e s r a n ge; and (3) the defendant is sentenced within the incorrect range." Mudekunye , 646 F.3d at 289. H o w e v e r,

w h e nth eco rre ct a n d in co rre ct G u id e lin e ra n g e s o v e rla p a n dth ed e fe n d a n t is

se n te n ce d w i t h i n th e o v e rla p , th is co u rt “d o e s n o t a ssu m e , in th e ab se n ce o f

a d ditio n a l e vid e n ce , th a t th e se n te n ce a ffe cts a d e fe n d a n t’s sub sta n tia l righ ts.” B lo ck er , 6 1 2 F .3 da t 4 1 6

. This cas e d o e s not fall within either line of precedent. The correct and incorrect Guideline ranges overlap by one month, but Alegria-Alvare z was sentenced outside the overlap, 14 months above the correct Guideline range. A criminal histo ry score of five, rather than eight, results in a criminal history

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category III. SeeU.S.S.G. Ch. 5, Pt. A, Sentencing Table. With a total offense level of twenty-one and a criminal history category III, Alegria-Alvarez's correct advisory Guideline range would have been forty-six to fifty-seven months. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. Alegria-Alvarez contends that the factual scenario of Mudekunye is very similar to his case, and that it supports a finding that the district court's error affected his substantial rights. In Mudekunye , the district court calculated the advisory Guidelines range, includi n g a n erroneous enhancement, to be

s e venty-eight to ninety-seven months of imprisonment. Id. The district c o u r t then sentenced Mudekunye at the top of that range to ninety-seven months. Id. at 285. Absent the erroneous enhancement, the correct Guideline range would have bee n sixty-three to seventy-eight months. Id. at 289. In imposing Mudekunye's sentence, the district court stated only that the "sentence happens to be within the Guideline range" and "is the appropriate sentence in this case given all of the facts and circumstances." Id. at 290 (internal quotat i o n s omitted). On appeal, we found the district court's comments to be "vague and ambiguous." Id. Moreover, we concluded that the nineteen-month disparity between the top of the correct range and the sentence imposed was "significant." Id. at 291. In light of the disparity between Mudekunye's sentence and the top of the correct Guidelines r a n g e , as well as "the absence of any evidence sugg e s ti ng that the court would have sentenced Mudekunye to ninety-seven

m o nths' imprisonment irrespective of the correct Guidelines range," w e concluded, “Mudekunye has shown a reasonable probability of a lesser sentence and therefore, demonstrated that the court's clear error affected his substantial rights." Id. Like Mudekunye , there is no evidence indicating that th e di s t r ict court would have sentenced Alegria-Alvarez to seventy-one months of imprisonment

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if it had used the correct Guideline range. Alegria-Alvarez’s sentence was also at the top of the erroneous Guidelines range upon which the district court relied. Despite that fact, the court stated only, "I've impose d a t e rm of 71 months. I believe this sentence does adequately address the senten c i n g objectives of punishment and deterrence, as well as meeting those other factors as set forth in Title 18, United States Code, Section 3553(a)." This is not enough to suggest that the dis t ri c t court would have sentenced Alegria-Alvarez to seventy-one months' imprisonment i r r e s pective of the correct Guidelines range. Thus, the district court's statements are ambiguous, and the disparity between the top of the correct range and Alegria-Alvarez’s sentence is significant. Moreover, we stated that where the correct and i n c o r r e ct ranges overlapped by only one month, the defendant was sentenced outside the overlap, and "where it is not apparent from the record th a t t h e d e f endant would have receive d a n above-Guidelines sentence, the imposed sentence affects the defendant's substantial rights." Id. (internal quotations and citation omitted); 1

see also United States v. Severin , 221 F. App'x 299, 303 (5th Cir. 2006) (holding, without discussion, that a disparity of only three months between the top of the correct Guidelines range and t h e s entence imposed affected the defendant's substantial rights).

It sho uld be note d that Mude kunye reli ed on an unpub lis he d c a s e as per sua sive 1 autho rity to sup por t its dec isi on, Uni ted States v. Carr izales- Jaram il lo , 303 F. App 'x 215, 217 (5t h Cir. 2008)

. See 646 F.3dat290

. In Carr izales- Jaram il lo , the correc t Gu ide lines range wa s tw enty- f

o u r to thir ty mo nths , the inco rre ct Gu ide lines range wa s thir ty to thir ty-s even mo nths , and the def

enda nt had been se nten ced to thir ty-o ne mo nths of im priso nme nt. 303 F. App 'x 216-17 . Review ing forplain err or, w e n ote d thatt he ranges overlap pedby one mo nth and that the se nten ce excee d ed the top of the pr ope rly calc ulate d range. Id. at 217. In dec idi ng that the err or a f f e c t e d s ubs tant ial right s and that the se nten ce sho uld be vacat ed, we st ated that the dis tri ct court "did n o t i n d i cat e that it wo uld have im pos ed the sam e s ente nce as an alte rnat ive se nten ce" and "did not expr es s an inte nt to go outs i d e o f t h e Gu ide lines r ange. " Id. 5 Case: 10-10357 Document: 00511793711 Page: 5 Date Filed: 03/20/2012No. 10-10357

However, relying on United States v. Lee , 368 F. App’x 548 (5th Cir. 2010), the Gover n m e n t argues that Alegria-Alvarez cannot establish a reasonable probability, but only a "mere poss ib i lity," that he would have received a lesser sentence had the district court calculated the correct Guidelines range. The Government notes that the district court did not mention the Guidelines range in explaining the sentence, but rather indicated that it was r e l yi n g o n t he § 3553(a) factors. Additionally, the Government contends that the discrepancy between the incorrect and correct ranges is insufficient to undermine confidence in the sentence. In Lee , however, we addressed the substantial rights prong only "[i]n the alternative." Id. at 553. In rejecting t h a t c laim, we determined that the discrepancy between the Guidelines ranges was insufficient t o s h ow a probability of a lower sentence and that the district court had been "clear that the sentence was not b a s ed on the advisory Guidelines," but rather on the § 3553(a) factors. Id. at 554 (emphasis in original). The record in this case, however, provides far less evidence of the district court's intentions at sent e n cing. The district court merely referenced punishment, deterrence, and the § 3553(a) factors and did not s t a t e t h at the sentence was no t based on the Guidelines range. Additionally, the district court’s reasons f

o r s e n tencing Alegria-Alvarez “did not indicate that it would have imposed the sa m e s e n t ence as an alternative sentence” and "did not

ex p r e s s a n intent to go outside of the Guidelines range.” See Carrizales-Jaramillo , 303 F. App'x at 217. Therefore, the fourteen-month disparity between Alegria-Alvarez’ s s e nt e nc e an d th e to p of th e c orrect Guideline range affected his substantial rights. Nevertheless, “[e]ven where a defendant's substantial rights are violated,

our court retains discretion to correct the reversib l e p l a i n error only if it seriously affects the fairness, in tegrity, or public reputation of judicial

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proceedings.” Mudekunye , 646 F.3d at 291 (citing Puckett , 129 S. Ct. at 1429);

see also John , 597 F.3d at 288 (holding "whether a sentenci n g error seriously affects the fairness, integrity, or public reputation of judicial proceedings is dependent upon the degree of the error and the particular facts of the case.”). In John , we determined that three facts supported vacating the sentence: (1) the district court imposed the sentence with o u t considering the correct Guideline range, which should have been the starting point for the district court; (2) the sentence "would not be subjected to the process otherwise applicable to above-Guidelines sentences; and ( 3 ) that John's sentence had already been substantially increased by the district court's use of the intended lo ss rather than the actual loss. 597 F.3d at 286-28 7. Like John , the district court in this case imposed t h e s e n tence without considering the correct Guideline range. In addition, it is not apparent from the record that Alegria-Alv a r e z would have received an above-Guideline sentence had the district court correctly calculated the Guideline range. Relying on United States v. Davis , 602 F.3d 643, 650 (5th Cir. 2010), the Government contends t h a t we should not exercise our discretion in correcting Al e gria-Alvarez's sentence. In Davis , the district court imposed an above-Guidelines sentence of twenty-four months of imprisonment based on the

erroneous Guidelines range of fifteen to twenty-one months, rather than the correct Guideline range of six to twelve months. Id. at 6 4 8

. I n d e c lining to exercise our discretion, we focused on the small disparity in the correct and incorrect Guidelines ranges, the fact that the sentence imposed was still below the thirty- s ix-month statutory maximum, and the fact that Davis violated his supervised relea s e under circumstances that "strongly suggested that he intended to resume the same activities for which he initially had been convicted and imprisoned." Id. at 651. We concluded that i n c a ses where we have

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exercised our discretion, the disparity between the correct and incorrect ranges was generally more severe than that presented here. Id. In this case, although the discrepancy between the incorrect and correct Guidelines range is smaller than in Davis , as the two overlap, see U.S.S.G. Ch.5, Pt. A, Sentencing Table, and Alegria-Alvarez's sentence is within the statutory maximum of 20 years, Alegria-Alvarez did not violate his supervised release under circumsta n ces that "strongly suggested that he intended to resume the same activities for which he initially had been convicted and imprisoned." See Davis , 602 F.3d at 651. Therefore, based upon the record before us, we are compelled to exercise our discretion in correcting Alegria-Alvarez’s sentence. CONCLUSION Based u p o n the foregoing analysis, Alegria-Alvarez’s sentence is VACATED , and the case is REMANDED for re-sentencing.

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