REVISED May 22, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41476

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

CARLOS ALBERTO FUENTES-CANALES, also known as Carlos Alberto 

Fuentes,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:15-CR-497-1

Before OWEN, SOUTHWICK, and WILLETT, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:*

Carlos Alberto Fuentes-Canales pleaded guilty to re-entering the United 

States illegally, an offense under 18 U.S.C. § 1326. Fuentes-Canales had 

previously been convicted by a Texas state court for burglary of a habitation,1

and the federal district court applied a 16-level sentencing enhancement under 

 

* 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.

1 TEX. PENAL CODE ANN. § 30.02(a) and (d) (West 2008).

United States Court of Appeals

Fifth Circuit

FILED

May 22, 2018

Lyle W. Cayce

Clerk

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§ 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines2 because of the Texas 

conviction, without objection from Fuentes-Canales. The federal district court 

sentenced Fuentes-Canales to 50 months of imprisonment and three years of 

supervised release. On appeal, Fuentes-Canales contends that his Texas 

conviction was not for generic burglary3 and that the district court therefore 

plainly erred in applying a 16-level enhancement. This court issued United 

States v. Herrold4 while Fuentes-Canales’s appeal was pending, and it is now 

plain in light of that decision that his prior Texas offense does not qualify as 

“burglary” for purposes of § 2L1.2(b)(1)(A)(ii)’s 16-level enhancement. 

However, we affirm the district court’s judgment because, in applying the 

fourth prong of plain error review, we decline to exercise our discretion to 

correct the error.5

I

Carlos Alberto Fuentes-Canales is a citizen of El Salvador and first 

illegally entered the United States in 1989, when he was 16 years old. He 

remained in this country for 26 years, and while here, married, had a daughter, 

and obtained a divorce. His Texas conviction under § 30.02(a) and (d) arose 

from his unlawful entry into the home of his former wife and his aggravated 

assault, or attempted aggravated assault, of her. After Fuentes-Canales had 

served his five-year term of imprisonment for that offense, he was deported. 

 

2 U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (U.S. SENTENCING 

COMM’N 2014).

3 See Taylor v. United States, 495 U.S. 575, 598 (1990) (“We believe that Congress 

meant by ‘burglary’ [in the Armed Career Criminal Act] the generic sense in which the term 

is now used in the criminal codes of most States.”); id. (“Although the exact formulations 

vary, the generic, contemporary meaning of burglary contains at least the following elements: 

an unlawful or unprivileged entry into, or remaining in, a building or other structure, with 

intent to commit a crime.”).

4 883 F.3d 517 (5th Cir. 2018) (en banc).

5 See generally Puckett v. United States, 556 U.S. 129, 142-43 (2009).

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Approximately two months later, he was found in the United States and 

pleaded guilty to re-entering illegally.

The Presentence Investigative Report (PSR) recommended the

application of a 16-level “crime of violence” increase to Fuentes-Canales’s base 

offense level of 8, pursuant to § 2L1.2(b)(1)(A)(ii) of the 2014 United States 

Sentencing Guidelines, concluding that his prior Texas burglary conviction 

was “burglary of a dwelling” within the meaning of comment 1(B)(iii). In 

addition, Fuentes-Canales has a prior conviction for driving while intoxicated. 

After applying a three-level reduction for acceptance of responsibility,6 the 

total offense level was 21. His criminal history category was III, which resulted 

in an advisory guidelines range of 46 to 57 months of imprisonment.

Fuentes-Canales did not object to the 16-level enhancement, and the 

district court accepted the PSR’s recommendations. The district court 

sentenced Fuentes-Canales to 50 months of imprisonment and three years of 

supervised release. On appeal, he contends that the district court’s plain error 

in applying a 16-level enhancement requires that his sentence be vacated and 

that he be re-sentenced.

II

Fuentes-Canales’s appeal has been pending in our court for a lengthy 

period of time. The initial round of briefing was completed in May 2016, but 

another case, presenting similar issues, was also pending at that time, and on 

October 3, 2016, a decision in that case, United States v. Uribe, issued.7 It

examined whether Texas Penal Code § 30.02(a) was divisible in light of the 

Supreme Court’s decision in Mathis v. United States.8 The Uribe decision 

 

6 See U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) and (b) (U.S. SENTENCING 

COMM’N 2014).

7 838 F.3d 667 (5th Cir. 2016).

8 136 S. Ct. 2243 (2016).

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concluded that the Texas statute was “elements-based” and therefore that it 

was “divisible and the modified categorical approach applies to determine 

which of the provisions of § 30.02(a) was the basis of [a defendant’s] 

conviction.”9 The Uribe opinion concluded that the district court did not err in 

applying a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines.10

Because Uribe potentially resolved Fuentes-Canales’s case, our court 

administratively held this appeal until the mandate issued in Uribe. The 

mandate in Uribe issued February 7, 2017.

On April 11, 2017, a panel of this court issued an unpublished opinion in 

United States v. Herrold, which, dutifully applying Uribe, held that § 30.02(a) 

was indivisible, and that a conviction under that statute was generic “burglary” 

within the meaning of the Armed Career Criminal Act (ACCA).11 Rehearing 

en banc was granted in Herrold, and Fuentes-Canales’s appeal was once again 

administratively held by our court, this time pending the court’s en banc 

decision in Herrold.

The en banc court in Herrold considered how Texas state courts have 

construed and applied Texas Penal Code § 30.02(a)(1) and (a)(3), and this court 

concluded that § 30.02(a)(1) and (3) of the statute are indivisible within the 

meaning of Mathis because they “are not distinct offenses, but are rather 

separate means of committing one burglary offense.”12 The en banc court 

further held that § 30.02(a)(3) “is broader than generic burglary.”13 

Accordingly, § 30.02(a) was overinclusive because it included a means of 

committing an offense that did not have the requisite elements of generic 

 

9 Uribe, 838 F.3d at 671.

10 Id. at 669. 11 685 F. App’x 302, 303 (5th Cir. 2017) (per curiam) (unpublished). 12 United States v. Herrold, 883 F.3d 517, 529 (5th Cir. 2018) (en banc). 13 Id. at 536-37; id. at 531 (holding that generic burglary requires “intent to commit a 

crime contemporaneously accompany[ing] a defendant’s unauthorized entry” and that Texas 

Penal Code § 30.02(a)(3) contains no such requirement).

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burglary.14 The Uribe decision was expressly overruled to the extent that it is 

inconsistent with Herrold.15

Fuentes-Canales’s appeal was recently assigned to this panel, and we 

have expedited our consideration of the issues he raises.

III

Because Fuentes-Canales failed to object to the 16-level enhancement in 

the district court, our review is for plain error under Federal Rule of Criminal 

Procedure 52(b).16 “[T]he authority created by Rule 52 is circumscribed.”17 

“There must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’”18

The Supreme Court has admonished that “Rule 52(b) leaves the decision to 

correct the forfeited error within the sound discretion of the court of appeals, 

and the court should not exercise that discretion unless the error ‘seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings.’”19 

This latter limitation is often described as the fourth prong of plain error 

review.20 “Meeting all four prongs [of plain error review] is difficult, ‘as it 

should be.’”21

The first and second prongs of plain error review are satisfied because 

the district court clearly erred in applying the 16-level enhancement. When 

 

14 See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); Shepard v. United 

States, 544 U.S. 13, 30 (2005) (O’CONNOR, J., dissenting) (“Every statute punishes a certain 

set of criminalized actions; the problem with some burglary statutes, for purposes of the 

ACCA, is that they are overinclusive.”).

15 Herrold, 883 F.3d at 529.

16 FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be 

considered even though it was not brought to the court's attention.”).

17 United States v. Olano, 507 U.S. 725, 732 (1993).

18 Id. (alteration in original).

19 Id. (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15 (1985) 

(quoting United States v. Atkinson, 297 U.S. 157, 160 (1936))). 20 See, e.g., Puckett v. United States, 556 U.S. 129, 142 (2009) (“Puckett contends that 

the fourth prong of plain-error review likewise has no application because every breach of a 

plea agreement will constitute a miscarriage of justice. That is not so.”).

21 Id. at 135 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9 (2004)).

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Fuentes-Canales was sentenced, the Sentencing Guidelines provided for a 16-

level increase in a defendant’s base offense level if he or she previously was 

removed after being convicted of a crime of violence.22 A crime of violence, as 

defined in the commentary to the 2014 Guidelines, included the enumerated 

offense of “burglary of a dwelling.”23 To determine whether the Texas offense 

of burglary of a habitation is equivalent to “burglary of a dwelling,” courts 

apply the categorical approach to compare the offense as defined by the Texas 

statute with the “generic” definition of burglary of a dwelling.24 If the statute 

does not require that at least each of the elements of generic burglary must be 

found by the fact-finder or admitted by the defendant, then the state offense is 

not generic and therefore is not an enumerated crime of violence.25

We have applied the generic definition of burglary under the ACCA to

the Sentencing Guidelines’ enumerated burglary offenses.26 The principles 

governing the categorical approach, and the methods announced in Mathis for 

determining whether a statute is divisible, also apply when ascertaining 

whether a prior conviction was for “burglary” within the meaning of the

Sentencing Guidelines.27 As used in the Guidelines’ definition of “crime of 

violence,” “burglary of a dwelling” is a subset of “generic” burglary.28

As discussed above, this court held in United States v. Herrold, that 

Texas Penal Code § 30.02(a)(3) sets forth a means of committing an offense

 

22 U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (U.S. SENTENCING 

COMM’N 2014).

23 Id. cmt. n.1(B)(iii).

24 United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir. 2012) (per curiam). 

25 See United States v. Hinkle, 832 F.3d 569, 574-75 (5th Cir. 2016).

26 See, e.g., United States v. Ortega-Gonzaga, 490 F.3d 393, 394-95 (5th Cir. 2007); see 

also United States v. Bernel-Aveja, 844 F.3d 206, 212-14 (5th Cir. 2016) (relying upon an 

ACCA case in its analysis of whether the defendant’s “burglary of a habitation” conviction 

qualified for an enhancement under former § 2L1.2).

27 See Hinkle, 832 F.3d at 574-75. 

28 United States v. Murillo-Lopez, 444 F.3d 337, 344-45 (5th Cir. 2006).

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that is not generic burglary under the ACCA, and §§ 30.02(a)(1) and (a)(3) are 

not divisible.29 Therefore, a conviction under § 30.02(a)(1) or (a)(3) is not for

generic burglary within the meaning of the Guidelines.30 Though FuentesCanales was convicted under subsection (d) of § 30.02, subsection (d)(2) is 

essentially, though not precisely, a combination of subsections (a)(1) and (a)(3) 

from an elements standpoint. Subsection (d) applies when the premises 

unlawfully entered are a habitation, and, by virtue of (d)(2), when “any party 

to the offense entered the habitation with intent to commit a felony other than 

felony theft or committed or attempted to commit a felony other than felony 

theft.”31 Therefore, a conviction may be obtained under § 30.02(d) when a 

defendant entered a habitation without the effective consent of the owner and

“committed or attempted to commit a felony other than felony theft.”32 Like 

subsection 30.02(a)(3), the defendant need not have the intent to commit a 

felony at the time of unlawful entry.33 The offense set forth in § 30.02(d) is not 

generic burglary.

The district court’s error in applying a 16-level enhancement for the 

conviction under § 30.02(a) and (d) is clear because “the ‘plainness’ of the error 

should be judged by the law at the time of appeal.”34 This court’s decision in

Herrold is now the law of this Circuit.

The third prong of plain-error review is satisfied because the error affects 

Fuentes-Canales’s substantial rights. Fuentes-Canales argues that absent the 

16-level enhancement, he would be subject, at most, to an 8-level enhancement, 

resulting in a Guidelines range of 18 to 24 months of imprisonment. The 

 

29 883 F.3d 517, 536-37 (5th Cir. 2018) (en banc).

30 Id. 31 TEX. PENAL CODE ANN. § 30.02(d)(2) (West 2008). 32 Id. 33 See United States v. Herrold, 883 F.3d 517, 526-29, 536-37 (5th Cir. 2018).

34 United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc).

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Supreme Court has explained that “[w]hen a defendant is sentenced under an 

incorrect Guidelines range—whether or not the defendant's ultimate sentence 

falls within the correct range—the error itself can, and most often will, be 

sufficient to show a reasonable probability of a different outcome absent the 

error.”35 The Court also explained that “[w]here . . . the record is silent as to 

what the district court might have done had it considered the correct 

Guidelines range, the court’s reliance on an incorrect range in most instances

will suffice to show an effect on the defendant’s substantial rights.”36

The district court stated on the record at the sentencing hearing that, 

after considering a number of factors, it was imposing a 50-months’ sentence,

in the middle of the 46 to 57 months’ range it had determined was the correct 

Guidelines range. The district court expressly rejected the Government’s 

request for a sentence at the high end of the range, as well as FuentesCanales’s request for a 36-months’ sentence. The district court explained that 

it had considered a lesser sentence since this was the defendant’s “first 

conviction for illegal re-entry,” but that “I think the factors that weigh against 

that [are] the recency of the return following a deportation, the recency of the 

criminal history and the seriousness of the criminal history.” The court also 

explained that “I think a high range would have been and could have been 

justified,” and “the only reason I’m not doing high end is because it’s your first 

conviction for” illegal re-entry. The record is silent as to the sentence the

district court would have imposed if the advisory sentencing range were 18 to 

24 months of imprisonment.

Whether we may, or should, exercise our discretion to vacate FuentesCanales’s sentence turns on whether the error “seriously affect[s] the fairness, 

 

35 Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). 

36 Id. at 1347.

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integrity, or public reputation of judicial proceedings.”37 We begin with the 

recognition that in considering defendants’ prior offenses, the Sentencing 

Guidelines seek to achieve more uniformity in sentencing. Ideally, each 

defendant who committed a “crime of violence” within the meaning of a 

Guidelines section would receive the same level of enhancement. Since the 

states define offenses such as “burglary” in varying ways, the Guidelines are 

construed to mean that each enumerated offense describes the “generic” 

offense.38 Once the elements of the “generic” offense are identified,39 the 

categorical approach determines whether the statute of conviction requires a 

finding at least as to each element of the “generic” offense.40 However, when a 

state statute, such as Texas Penal Code 30.02(a)(1) and (a)(3), defines a nongeneric offense, then even if, as a factual matter, the defendant actually

committed the generic offense of burglary, his or her offense level under the 

sentencing Guidelines will not be enhanced.41 While courts cannot consider 

the factual means by which a defendant committed a prior offense for purposes 

of arriving upon the correct Guidelines sentencing range,42 the defendant’s 

 

37 Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)).

38 See United States v. Hinkle, 832 F.3d 569, 574-75 (5th Cir. 2016).

39 See, e.g., Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1571 (2017) (surveying 

state criminal codes to determine the generic meaning of sexual abuse of a minor); Gonzales 

v. Duenas-Alvarez, 549 U.S. 183, 190 (2007) (examining the states’ criminal laws in 

concluding that the generic definition of theft includes certain categories of aiders and 

abettors as well as principals). 40 See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2248-49 (2016). 41 Id. at 2248 (“A crime counts as ‘burglary’ under the [ACCA] if its elements are the 

same as, or narrower than, those of the generic offense. But if the crime of conviction covers 

any more conduct than the generic offense, then it is not an ACCA ‘burglary’—even if the 

defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's 

boundaries.”).

42 See, e.g., Hinkle, 832 F.3d at 572 (“In determining whether a prior conviction is 

included within an offense defined or enumerated in the Guidelines, we have generally looked 

only to the elements of the prior offense, not to the actual conduct of the defendant in 

committing the offense.”).

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actual conduct in committing that crime or other evidence regarding the 

defendant—if sufficiently supported by the record—may be considered when 

determining whether a sentence above, or below, the range indicated by the 

advisory Guidelines would be appropriate.43 By analogy, an appellate court 

conducting plain error review may consider the defendant’s actual conduct in 

determining whether sentencing error affects the fairness, integrity, or public 

reputation of judicial proceedings.

The Supreme Court explained in Puckett v. United States that “[t]he 

fourth prong is meant to be applied on a case-specific and fact-intensive basis.

We have emphasized that a ‘per se approach to plain-error review is flawed.’”44 

In Puckett, the defendant contended that the Government had violated a plea 

agreement and argued that the fourth prong was always satisfied in such a 

case.45 The Court reasoned, “[i]t is true enough that when the Government 

reneges on a plea deal, the integrity of the system may be called into question, 

but there may well be countervailing factors in particular cases.”46 The Court 

found that “Puckett is again a good example: Given that he obviously did not 

cease his life of crime, receipt of a sentencing reduction for acceptance of 

responsibility would have been so ludicrous as itself to compromise the public 

reputation of judicial proceedings.”47 The present case is analogous.

 

43 See, e.g., Gall v. United States, 552 U.S. 38, 58 (2007) (concluding, in upholding a 

sentence of probation when the Guidelines sentencing range was 30 to 37 months of 

imprisonment, that “[g]iven the dramatic contrast between Gall's behavior before he joined 

the conspiracy and his conduct after withdrawing, it was not unreasonable for the District 

Judge to view Gall's immaturity at the time of the offense as a mitigating factor, and his later 

behavior as a sign that he had matured and would not engage in such impetuous and illconsidered conduct in the future. Indeed, his consideration of that factor finds support in our 

cases.”).

44 556 U.S. 129, 142 (2009) (quoting United States v. Young, 470 U.S. 1, 17 n.14 (2009)). 45 Id. 46 Id. at 142-43.

47 Id. at 143.

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Fuentes-Canales’s receipt of a sentence that would be imposed in the 

mine run of cases on a defendant previously convicted of generic burglary does 

not call the integrity of the judicial system into question given the specific facts 

of Fuentes-Canales’s prior offense. There is compelling evidence, unchallenged 

and unrebutted by Fuentes-Canales that, as a factual matter, he did commit 

the generic crime of burglary and used a deadly weapon in the process. This 

evidence is found in a description of the facts underlying the Texas burglary 

offense in the Presentence Investigation Report (PSR), which relied on the 

state-court indictment and an “Affidavit for Arrest Warrant or Capias,”

(“Affidavit”). The indictment and Affidavit are attached to the PSR. FuentesCanales did not object to the PSR or contest the accuracy of its factual 

description of his conduct before and during the offense for which he was 

convicted under Texas Penal Code § 30.02(a) and (d). “If information is 

presented to the sentencing judge with which the defendant would take issue, 

the defendant bears the burden of demonstrating that the information cannot 

be relied upon because it is materially untrue, inaccurate, or reliable.”48 On 

appeal, the Government supplemented the record with the written charge and 

instructions given to the state-court jury and the jury’s written responses to 

special issues on which the prior Texas conviction for burglary of a habitation 

was based.

The PSR and the state-court Affidavit reflect that Fuentes-Canales

called his former wife, threatened to kill her during that call, and an hour later,

at approximately 10:25 p.m., he entered her home without her permission and 

with no right to be on the premises. When she heard noises at the back, sliding-

 

48 United States v. Landerman, 167 F.3d 895, 898 n.2 (5th Cir. 1999) (quoting United 

States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991)); see generally United States v. Nava, 624 

F.3d 226, 231-32 (5th Cir. 2010); United States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007); 

United States v. Rose, 449 F.3d 627, 633 (5th Cir. 2006).

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glass door, she thought it was her son attempting to enter her home. She exited 

her bedroom and instead encountered Fuentes-Canales in the hallway holding

three of her kitchen knives. He pressed the knives against her abdomen and

threatened to kill her. When he realized their seven-year-old daughter Keire

was witnessing the assault of her mother, he grabbed Keire and exited the 

residence with her in his arms. His former wife yelled that she was calling the 

police. Fuentes-Canales re-entered the home, grabbed the phone, “smashed it 

on the floor,” and fled, leaving Keire in the front yard. His former wife called 

911 on another phone. Upon entering the home, the responding officer 

observed three knives on an end table in the living room and a “smashed” 

phone on the hallway floor of the residence.

Fuentes-Canales was apprehended, indicted, and convicted by a jury in 

Texas state court under Texas Penal Code § 30.02(a) and (d). In response to a

special issue, the jury unanimously found that Fuentes-Canales was guilty “of 

burglary of a habitation with intent to commit a felony, as charged in the 

indictment.” The allegations in the indictment are set forth in the margin.49

 

49 The indictment alleged:

FUENTES, CARLOS ALBERTO, Defendant,

On or about the 18th day of August A.D., 2008 in the County of Dallas and said 

State, did

unlawfully, intentionally and knowingly enter a habitation without the 

effective consent of SANDRA FUENTES, the owner thereof, with the intent to 

commit a felony other than theft, namely, AGGRAVATED ASSAULT,

And further, said Defendant did unlawfully, intentionally and knowingly enter 

a habitation without the effective consent of SANDRA FUENTES, the owner 

thereof, and did then and there commit and attempt to commit a felony other 

than theft, namely, AGGRAVATED ASSAULT,

And it is further presented in and to said Court that a deadly weapon, to-wit:

A KNIFE, was used or exhibited during the commission of the aforesaid offense 

or during immediate flight following the commission of the aforesaid offense, 

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The jury found in another special issue that Fuentes-Canales used or 

exhibited a deadly weapon during the commission of the offense.50 In his

briefing in our court, Fuentes-Canales states that this finding “relates only to 

whether the state judge could order community supervision,” and “does not 

relate to any element of the offense itself.”51 However, the jury’s finding

increased the statutory minimum sentencing range, and Texas law required

that a unanimous jury make the requisite finding. A federal court may 

certainly consider these findings as part of the record of the prior conviction.

The jury declined to impose a life sentence, but in another special issue, 

the jurors were given the option to sentence Fuentes-Canales to not more than 

99 or less than 5 years of imprisonment. The jury chose 5 years. 

Fuentes-Canales was deported after he had completed his state prison 

term. But he re-entered the United States illegally two months later while on 

parole for his Texas offense.

In light of the record in this case, it is difficult to conclude that the public 

reputation of judicial proceedings is compromised because Fuentes-Canales’s

 

and that the defendant used or exhibited said deadly weapon or was a party to 

the aforesaid offense and knew that a deadly weapon would be used or 

exhibited.

50 The special issue read, “We, the jury, unanimously find the defendant did use or 

exhibit a deadly weapon during the commission of the offense.” (Emphasis in original).

51 At the time Fuentes-Canales committed the Texas offense, TEX. CODE CRIM. PROC.

ANN. art. 42.12 § 3g(a)(2) (West Supp. 2013), which was repealed effective January 1, 2017,

provided that the discretion given to a judge to place a defendant on community supervision 

did not apply

to a defendant when it is shown that a deadly weapon as defined in Section 

1.07, Penal Code, was used or exhibited during the commission of a felony 

offense or during immediate flight therefrom, and that the defendant used or 

exhibited the deadly weapon or was a party to the offense and knew that a 

deadly weapon would be used or exhibited. On an affirmative finding under 

this subdivision, the trial court shall enter the finding in the judgment of the 

court. On an affirmative finding that the deadly weapon was a firearm, the 

court shall enter that finding in its judgment.

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sentencing range was derived from an erroneously imposed 16-level 

enhancement, when other defendants, convicted of far less culpable conduct, 

properly receive such an enhancement under the Guidelines. Nor can we say 

that the error in applying a 16-level enhancement seriously affects the fairness 

or integrity of judicial proceedings in light of the facts of this case. Under the 

charge and special issues, the state-court jury could have found that FuentesCanales unlawfully entered his ex-wife’s home with intent to commit 

aggravated assault, or that he unlawfully entered her home and committed or 

attempted to commit an aggravated assault, or it could have found that he did 

all of these things. Given the evidence, it is more probable than not that the 

jury at least concluded he entered the home with intent to commit a felony 

other than felony theft. A preponderance of the evidence strongly indicates 

that Fuentes-Canales intended to commit an aggravated assault when he 

unlawfully entered his former wife’s home. The 50-months’ sentence that he 

received is comparable to sentences that would be imposed on those who 

committed a comparable prior offense. Vacating his sentence would

essentially, as a practical matter, result in sentencing disparity rather than 

promote sentencing uniformity.

While Fuentes-Canales’s prior Texas conviction for burglary of a 

habitation does not give rise to the 16-level enhancement under 

§ 2L1.2(b)(1)(A)(ii), his actual conduct in committing that offense, shown by a 

preponderance of the evidence, would be a reasonable basis for a substantial 

variance from the Guidelines that mirrored a sentence that included a 16-level 

enhancement. For example, in United States v. Herrera-Garduno, the 

sentencing Guidelines range was 21 to 27 months of imprisonment, but the 

district court sentenced the defendant to 60 months of imprisonment, 

reasoning that though his prior drug conviction did not qualify as a drug 

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trafficking offense under the Guidelines, the advisory sentencing range did not 

reflect the seriousness of the prior convictions.52 We affirmed, noting that we 

have “upheld an upward departure without regard to whether the prior offense 

‘technically’ qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii).”53 It 

would also be reasonable to conclude that though Fuentes-Canales’s conviction 

could not support the 16-level enhancement, his criminal history was 

substantially understated in light of the facts underlying his particular 

criminal conduct.

We therefore conclude that we should not exercise our discretion to 

correct the district court’s error in applying a 16-level enhancement based on 

the Texas conviction under Texas Penal Code § 30.02(a) and (d).

* * *

The judgment of the district court is AFFIRMED.

 

52 519 F.3d 526, 530-31 (5th Cir. 2008).

53 Id. at 531; see also United States v. Pillault, 783 F.3d 282, 286, 292 (5th Cir. 2015) 

(affirming a sentence of 72 months’ though the top of the advisory Guidelines range was 24 

months’); United States v. Williams, 517 F.3d 801, 806, 813 (5th Cir. 2008) (affirming a 172 

months’ sentence though the Guidelines range was 78-97 months’).

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LESLIE H. SOUTHWICK, Circuit Judge, dissenting.

With respect, I dissent. The majority has accurately detailed the factors 

for plain-error review, then applied those factors to let a sentence stand though 

it was imposed after a substantial miscalculation of the Guidelines range. It 

is my sense that we should be reviewers of sentences, never their effective 

creators. The district judge committed plain error that affected this 

defendant’s substantial rights. I would let that judge decide what sentence is 

now appropriate.

It is evident that the district court started with the erroneous Guidelines 

range of 46 to 57 months, then imposed a sentence of 50 months taken from 

the middle of the range. It certainly seems likely the errant range significantly 

impacted the sentence given. 

Without the enhancement, which was plainly erroneous, the Guidelines 

range would have been 18 to 24 months. The majority agreed the error affected 

the defendant’s substantial rights but decided that leaving the sentence 

unchanged would not affect the fairness, integrity, or public reputation of the 

judicial proceedings because a substantial departure from the Guidelines was 

warranted on these facts. 

The majority’s articulation of the discretionary fourth factor of plainerror review is well-stated. How to exercise our discretion is a matter of 

judgment. I believe that when we use that fourth plain-error factor to refuse 

to vacate a sentence that is based on a substantially erroneous Guidelines 

calculation, and do so because it is the sentence that in our view the facts 

justify, we are intruding into what we should always leave as district court 

business: what is the proper sentence for this defendant’s offenses? 

Yes, the majority relies in part on the Supreme Court’s use of the fourth 

plain-error factor to leave in place a sentence that grew out of the 

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Government’s violation of a plea agreement. See Puckett v. United States, 556 

U.S. 129, 142–43 (2009). I do not see that example as especially useful here. 

The Supreme Court dealt with a special case in this category. At times, the 

Court stated, when the Government fails to honor a plea agreement, there may 

not even be “prejudice, either because he obtained the benefits contemplated 

by the deal anyway (e.g., the sentence that the prosecutor promised to request) 

or because he likely would not have obtained those benefits in any event (as is 

seemingly the case here).” Id. at 141–42. Puckett’s sentencing finally occurred 

three years after the time of the plea agreement in which the Government had 

agreed to recommend a three-level reduction for acceptance of responsibility. 

In those three years, Puckett had engaged in additional criminal conduct. Id. 

at 132. That led to the Court’s statement that it seemed unlikely that the 

district court would even have accepted a suggestion that Puckett showed the 

slightest sense of responsibility.

Quite differently, what we have here is the bread and butter of the 

sentencing errors we address on appeal — the Guidelines range was 

miscalculated. The record indicates the sentencing judge started his analysis 

of the proper sentence from the erroneously calculated range, gave a sentence 

that was tied to that range, and gave no hint that the same sentence would 

have been given regardless of the proper range.

In my judgment, we should not be analyzing the facts of a case and 

deciding that the sentence given was a justified one. To the contrary, it is a 

common practice for us to vacate and remand for resentencing when plain error 

prejudicing a defendant is shown, without trying to decide whether the 

defendant got what we think he deserved. What has weighed on us in doing 

so is that, as here, the sentence given is substantially outside the properly 

calculated Guidelines range. United States v. Mudekunye, 646 F.3d 281, 291

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(5th Cir. 2011). We have chosen to vacate and remand when a defendant 

received a sentence 19 months longer than the maximum of the correct 

Guidelines range. Id. at 290. We vacated and remanded when a defendant’s 

51-month sentence was 18 months longer than the upper end of the correct 

Guidelines range. United States v. Hill, 716 F. App’x 327, 330 (5th Cir. 2018). 

We have even remanded for resentencing where the defendant received a 24-

month sentence when the correct Guidelines range was 15–21 months. United 

States v. Segura-Sanchez, 452 F. App’x 471, 474 (5th Cir. 2011).

It has not been common practice — I have not surveyed the cases to say 

it never occurs — for us to look at the facts of a defendant’s crimes and decide 

whether the sentence already given is a fair one. I would remain focused on 

whether the record convinces us, or does not do so, that the sentence given is 

the one the district court would give again were we to return sentencing to that 

court. This defendant was tried by a specific judge in a specific court. There 

are variations in sentences caused by the human factor, despite the goal of the 

Guidelines to foster uniformity. It seems unwise, though I hesitate to use the 

label “unfair,” for us to create a new variable by inserting our own judgments.

Our caselaw allows the fourth factor of plain-error review to be applied 

in this way. I do not challenge the majority’s understanding of the law, only 

its exercise of discretion to allow the sentence to remain in place here. On 

sentencing issues, it is the district judge’s judgment that we review. I do not 

want to substitute ours even when we can. I would vacate and remand.

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