IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40602

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARMANDO ARELLANO-VELASQUEZ, also known as Cijifrido Velasquez 

Arellano,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-1751-1

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:*

Armando Arellano-Velasquez (Arellano) appeals the 57-month sentence 

of imprisonment imposed on his guilty plea conviction for illegal reentry into 

the United States following removal. See 8 U.S.C. § 1326. He maintains that 

the district court misapplied U.S.S.G. § 2L1.2(b)(1) when it enhanced his base 

offense level by 16 levels.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

February 6, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40602

Because Arellano forfeited this claim of error by not urging it in the 

district court, we review for plain error. See United States v. MondragonSantiago, 564 F.3d 357, 361 (5th Cir. 2009). To succeed on plain error review, 

Arellano must show (1) a forfeited error (2) that is clear or obvious and (3) that 

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 

(2009). On such a showing, we may exercise our discretion “to remedy the 

error . . . if the error seriously affects the fairness, integrity or public reputation 

of judicial proceedings.” Id. (internal quotation marks, bracketing, and citation 

omitted).

A Georgia state court convicted Arellano in March 2011 for possessing

cocaine with intent to distribute. He was sentenced to five years of 

imprisonment, with one year to be served in custody and four years on 

probation. Arellano was removed to Mexico in November 2011, but he crossed 

the border from Mexico into the United States on September 23, 2012, without 

permission from the Attorney General. Georgia revoked Arellano’s probation 

in October 2012 and imposed a 180-day prison term. The district court adopted 

the presentence report, which reasoned that Arellano’s Georgia sentence 

exceeded 13 months and consequently that the 16-level enhancement under 

§ 2L1.2(b)(1)(A)(i) was in order, given that Arellano received criminal history 

points for the offense. 

Because no violation of the Ex Post Facto Clause resulted, the district 

court was correct to apply the 2012 version of the Sentencing Guidelines 

manual. See United States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 

2007). However, the district court misinterpreted that version, which 

contained a change made by Amendment 764 that clarified how the length of 

a prior drug trafficking sentence is to be calculated for § 2L1.2(b)(1) 

enhancement purposes. See United States Sentencing Commission, 

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No. 13-40602

Guidelines Manual, Supp. to Appendix C, Amendment 764, pp. 11-12 (Nov. 1, 

2012). Under the amendment, “the term of imprisonment imposed upon 

revocation [of a term of probation] counts toward the calculation of the offense 

level in § 2L1.2 only if it was imposed before the defendant was deported or 

unlawfully remained in the United States.” Amendment 764, comment.; see

§ 2L1.2 comment. (n.1(B)(vii)) (effective November 1, 2012). 

The 180-day addition to the Georgia prison sentence did not occur until 

probation was revoked in October 2012, after Arellano’s 2011 removal. 

Therefore, under the 2012 version of the Guidelines, the term of imprisonment 

imposed upon that revocation was not includable when calculating Arellano’s 

sentence for the 2011 Georgia offense used for enhancing the sentence in the 

instant case. See § 2L1.2 comment. (n.1(B)(vii)). Consequently, the district 

court committed plain error when it misinterpreted the Guideline and 

enhanced Arellano’s base offense level by 16 levels under § 2L1.2(b)(1)(A)(i) 

rather than by 12 levels under § 2L1.2(b)(1)(B). See Puckett, 556 U.S. at 135; 

see also United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008). 

But for that error, Arellano’s offense level would have been 17 and the

sentencing guidelines range would have been 37 to 46 months, significantly 

lower than the 57-month sentence imposed. The error therefore affected 

Arellano’s substantial rights. See Puckett, 556 U.S. at 135; United States v. 

Gonzales, 484 F.3d 712, 716 (5th Cir. 2007). Given that the district court’s 

error affected his sentence, Arellano has shown that the error “seriously 

affected the fairness, integrity, or public reputation of judicial proceedings.” 

Gonzales, 484 F.3d at 716.

SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

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