### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-41159

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. MARIO MARTINEZ-CRUZ, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:12-CR-400-1

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges. PER CURIAM: * In April 2012, federal agents found Mario M artinez-Cruz (“Martinez”) unlawfully p r esent in t h e U n i t e d S t ates. He was charged with one count of illegal reentry f

ollowing deportation after conviction of a felony, a violation of 8 U.S.C. §§ 1326(a), (b)(1), to which he p l e d g uilty w ithout a written plea agreement. A dopting the Pre-Sentence Investigation Report’s (“PSR”) factual findings and recommendations, the district c o urt sentence d Martinez to 30- U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 9, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-41159 Document: 00512366822 Page: 1 Date Filed: 09/09/2013No. 12-41159

months imprisonment, the top-end of the 2 4 to 3 0 mo n t h s advisory guidelines range. On appeal, Martinez raises a single issue: w hether the district court plainly erred in determining his criminal history catego r y

— a n d as a result

m i s c al c u l at e d hi s advisory guidelines r ange—because the c ourt added a cri m i n al history p oint d ue to his 2008 Texas m isdemeanor conviction of interference with public d uties. Holding that Martinez has met the e xacting plain error standard,

we REVERSE and REMAND for the district court to re-sentence M artinez in the light of the accurate advisory guidelines range. I. O n April 1 2, 2012, Martinez was found near Brownsville, T exas b y Customs and Border Protection agents. Martine z a dmitted that h e had no documentation permitting him to b e in the United States. Indeed, he previously had been d eported to Mexico on December 9, 2009, following his conviction for possession with i ntent to distribute cocaine (the “cocain e c o n viction”). When Martinez was discovered in the United States in April 2012, he had not obtained permission from the United States to r eapply f or admission. O n June 26, 2012, Martinez pled guilty to the single-count indictment. Under the 2011 Sentencing Guidelines, Martinez’s base offense level was determined to be eight. His base o f f e n s e level then was increased by an additional eight levels pursuant to U.S.S.G. § 2 L 1

. 2 (b)(1)(B) because of the cocaine conviction, for which he was sentenced to seven year s o f deferred adjudication probation. After a p p lying a three-level reduction because M artinez accepted responsibility, h is total offense level was 13. The PSR also found that Martinez h ad accrued s even criminal history points: (1) one point for his 2008

con viction of interfering with the duties o f a public s ervant (a Texas misdemeanor offense); (2) o ne point f o r the cocaine conviction; (3) three points for his 2010 conviction of attempted illegal reentry; and (4) two points because

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he was on probation for the cocain e c o n viction when he committed the instant

o ffense. Martinez’s criminal history category thus was IV. C ombining hi s criminal history ca t e g o r y with his total offense l evel, Martinez’s advisory guidelines range was 24 to 30 mont h s . The statutory m aximum term o f imprisonment was ten years. Although Martinez r a ised a n umber of objections at the sentencing hearing, the district court adopted the P S R in its entirety. The court also denied Martinez’s request f or a downward departure o r variance, s u bsequently sentencing Martinez to 30-months imprisonment followed by a three-year term of supervised release. 1Martinez timely appealed. I I. Martinez contends that the district court erred b y i ncluding an additional criminal history p oint in its calculation of h is criminal h istory c a tegory based on his 2008 Texas misdemeanor convicti o n f o r i nterfering with the duties of a public offici a l

. Martinez acknowledges, however, that he did not raise this objection before the distri c t c o u r t

. Our review thus is f or p lain error. United States v. Mudekunye , 6 46 F.3d 281, 287 (5th C ir. 2 011). “ F or reversible p lain error, defendant must show a clear or obvious error that affects his substantial rights.” Id. ; see a lso United States v. Castillo-Estevez , 5 97 F.3d 238, 2 40 (5th C ir. 2010) (“[Defendant] must show (1) error (2) that is plain and (3) that af f e c t s h i s substantial rights.”). We “will correct plain errors o nly if they seriously affect

1 In reques ting a 30- month s entence, the governm ent s tated : This d ef end ant ought to be getting a 16- level enhancem ent ins tead of an eight, Your H onor. I m e a n , he’s been on def erred f or d elivering cocaine. H e’s com m itted and been convicted of of f ens es s ince he w as p l a c e d o n d ef erred ad jud ication, and the d ef erred ad jud icati o n w a s n e v er ad jud icated

. So he’s

- - he had a - - I believe a 1326 conviction w hile on d ef erred ad j ud ication. H e had other arres ts for being in the country illegally w hile he w as on p robation. H e w as encountered on Ap ril the 6th of 2012, and he rem ains on this d ef erred , s o he only gets a p lus eight ins tead of the p lus 16 or at leas t a p lus 12 if he was to s erve even a d ay f

or that of

f ens e, so w e’re as k ing f or 30 m onths

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the fairness, i n t e grity, or public reputation of judicial proceedings.” CastilloEstevez , 597 F.3d at 240. A. In this case, the government e xpressly c oncedes that a ssessing M artinez

a criminal history point because o f his 2008 Texas misdemeanor conviction was

an “error,” and the error was “plain.” Although we a re not bound by the government’s confession of error, our i n d ependent review of the relevant Sentencing Guidelines provision demonstrates that the district court committed

a clear and obvious error. See Every v. Blackburn , 7 81 F.2d 1138, 1140-41 (5th Cir. 1986). In calculating criminal history, sentences for misdemeanor offenses are counted unless excluded under U.S.S.G. § 4A1.2(c). Of f e n s e s li s t e d u nder section 4A1.2(c)(1)—including “offenses similar to them, by whatever name they are known”—are e x c luded from the criminal history calculation unless: “(A) t h e sentence was a t erm of probation of more than one year or a term of imprisonment of at least thirty days, or ( B) the prior o ffense was similar to an instant offense.” § 4A1.2(c)(1). Relevant here is the listed o ffense of “[h]indering

or failure t o obey a police officer.” Id. T o determine whether the Texas offense for “interference w ith public d uties” i s s imilar to the listed offense, we apply “a

common sense approach which relies on all possible f a ctors of similarity.” United States v. Hardeman , 9 33 F.2d 278, 281 (5th Cir. 1991); see also § 4A1.2, comment., app. n.12(A) (listing factors courts should consider). In Texas, the “interference with public du t i e s ” o ffense is a C lass B misdemeanor punishable b y a fine not to exceed $2,000, jail confinement for up to 180 days, or both. T E X

. P E N A L C O D E §§ 3 8.15(a)(1), (b); see a ls o T E X

. P E N A L C O D E § 12.22

. “A person commits [the offense] i f the person with criminal negligence interrupts, disrupts, impedes, or otherwi se interferes with: (a) a peace officer while the peace officer i s performing a duty or exercising authority

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imposed or granted by law.” § 38.15(a)(1). Based on the plain language of the statute, Martinez’s conviction for interfering with the duties of a p ublic servant is essentially identical to the listed offense of hindering or failing to obey a police officer. Furthermore, h e was sentenced to only three days in prison a s a result of his actions. As s u c h , t h e 2008 Texas conviction counts for criminal history purposes only if it is similar to the instant offense. See § 4A1.2(c)(1). The gover n m e n t states that it would be “hard pressed to argue that” interfering with a public serv a n t i s s i milar to the instant offense of illegal

r eentry. We agree that the offenses clearly are not similar for purpos e s o f section 4A1.2(c)(1). The 2008 Texas misdemeanor c onviction shou l d n o t have been included i n calculating Martinez’s criminal history category. M artinez therefore ha s s a t i s f

i ed the first part of the p l ain error test; the district court committed an error that was clear or obvious. See United States v. Blocker , 612 F.3d 413, 416 (5th Cir. 2010) (stating that because o ur conclusion was reached through a straightforward application of the Guidelines, error was obvious). B. We next must determine whether the additional criminal history point affected Martine z ’ s substantial rights. “In cases of miscalculated guidelines ranges, this requires demonstrating a ‘reasonable p r obability that, but for the d istrict court’s misapplication of the Guidelines, [the d efendant] would have received a lesser sentence.’” Blocker , 612 F.3d at 416. “[A] d e fendant h as shown

a reasonable probability that he would have received a l esser s entence when (1) the district court mistakenly calculate s t h e w rong Guidelines range, (2) the incorrect rang e i s s i g n i ficantly higher than the t r ue G uidelines range, and (3) the defendant is sentenced within the incorrect r a n g e.” Mudekunye , 646 F.3d at 290. Martinez relies on our prior decisions in Mudekunye and U nited States v. Avalos-Martine z , 700 F .3d 138 (5th Cir. 2012), in arguing that the additional

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criminal history point affected his substantial rights. In Mudekunye , the district court ado p t e d an advisory guidelines range of 78 to 97 months in prison, ultimately imposing a 97-month sentence. 646 F.3d at 285, 289. At sentencing, the district court stated only that the “sentence h appens t o b e w ithin the Guideline range” a nd “is the appropriate senten c e i n this case given all of the facts and circumstances.” I d. at 290 (internal quotations omitted). We, h owever, concluded that the correct advisory guidelines range was 63 t o 78 months. I d. at 289. As a r esult, we held that in cases where the correct and incorrect ranges overlap, but the c ourt imposes a sentence significantly above the top end of the correct Guidelines range, the imposed sentence a ffects the def e ndant’s substantial rights “where it is not apparent from the record that [the defendant] would have received an above-Guidelines s entence.” Id. at 290 (quoting United States v. John , 597 F.3d 2 63, 285 (5th Cir. 2010)) (alteration in original) (internal quotation marks omitted). Furthermore, in A valos-Martinez , the district c ourt adopted an advisory guidelines range of 70 to 87 months in prison and imposed a 72-month sentence. 700 F.3d at 153. Moreover, the court “stated that it did not intend to impose a sentence above the a pplicable guidelines range.” Id. On appeal, we determined that the correct a dvisory guide l i nes range was 5 7 to 7 1 months in p rison and concluded that, “Based on the distri c t c o u r t ’ s expressed intention and the fact that [the defendant’s] s entence exceeded the correct advisory guidelines range, the district court’s error affected his substantial rights.” Id. at 153-54. The instant case fits squarely within our prio r d e c i s i o n s in M udekunye and Avalos-Martinez

. H ere, the additional criminal history point caused Martinez’s criminal h istory category to be IV instead of III; making the applicable guidelines r ange 24 to 30 months instead of the correct 18 to 24 months. Furthermore, the district court sentenced Martinez to 30-m o nth s i m p ri s o n ment,

a sentence outside of the accurate Guidelines r a nge by six months. And, as the

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government acknowledges, it is unc l e a r w h e ther the district court would have entered a 30-month sentence regardless of the advisory guidelines range. Because “it is not apparent from the record that” the district court would have imposed an above-Guidelines sentence, w e conclude that the a dditional c riminal history point affected Martinez’s substantial rights. See Mudekunye , 646 F.3d at 290. C. Martinez has shown that the district court’s plain err o r i n including the additional criminal history p oint affected his substantial rights, b u t w e will exercise our discretion to co r r e c t the e rror o nly if i t “seriously a ffect[s] the fairness, integrity or public rep u tation of judicial proceedings.” C astillo-Estevez , 597 F.3d at 240. This inquiry ultimately “is dependent upon the d egree of error and the particular facts of the case.” United States v. Hernandez , 690 F.3d 613, 622 (5th Cir. 2012) (citation omitted). The government argues that this court should not exercise its discretion because the difference between the top end of the correct Guidelines range and Martinez’s sentence is only six months, and be c a u se Martinez “should have go tt e n” a 12-level enhancement, instea d o f a n e i gh t

- l ev e l e nh a n c e m e nt , p u r s u a nt to section 2 L1.2(b)(1). Indeed, our published decisions finding plain error in this context generally involved significantly larger variances than six months. See Mudekunye , 646 F.3d at 290 (19-month difference); United States v. John , 597 F.3d 263, 285 (5th Cir. 2010) (21-month difference); see also Avalos-Martinez , 700 F.3d at 154 (denying relief under the fourth prong when the difference was only one month). And, with respect to the 12-level e nhancement, the government states that if Texas had adjudicated Martinez’s cocaine conviction—according to the government, the instant o f fense violated his probation and should have triggered the deferred a djudication—before he was

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sentenced in this case, Martinez would h ave r eceived at least a 12-level increase in his base offense level. Martinez’s argument, however, is equally well-supported b y our c aselaw. For example, in Hernandez we exercised our discretion to correct a sentencing

e r ror when confronted with a 12-month di fference between the t op end of the accurate Guidel i n e s r ange and the defendant’s sentence. 690 F .3d at 621-22. And, like Hernandez , “the district court’s erro r [ i n t h e instant case] was particularly obvious, involving a straightforward misapplication o f t h e plain language of the Guidelines.” Id. at 622. M oreover, the H ernandez defendant’s criminal record contained significantly more aggravating factors than are p r e s e n ted in the instant case; the Hernandez defendant w as found guilty of a “cocaine conspiracy offense,” a n d his sentence was increased based on the possession of three firearms at the time of the offense—a handgun and “two AK–47 style rifles.” Id. at 618 (internal quotation marks omitted). Although the i nstant case fall s d i r ectly i n between our precedent in Avalos-Martinez

—denying r elief w hen confronted with a one-month difference—and Hernandez —granting relief b ased on a 12-month discrepancy,

we believe that the facts of this case are more closely aligned with Hernandez

. Our failure t o correct this sentencing error in the light o f the six-month difference between Martinez’s sentence and t h e top e nd of the accurate Guidelines range, and the district court’s clear misapplication of the Guidelines, would serio u s l y a ffect the integrity of the judicial process. On r emand, the district court should re-sentence Martinez w ith reference to the proper advisory guidelines range. III. For the reasons stated above, the judgment of the district court is REVERSED and REMANDED.

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