### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 11176

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. RICKY LOVELY, also known as Lil Rickey,
Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17

- CR

- 539

- 1

Before KING, HIGGINSON, and DUNCAN, Circuit Judges

. PER CURIAM: * Ricky Lovely pleaded guilty to one count of possessing stolen firearms and aiding and abetting. T he presentence report (PSR) determined Lovely had a total offense level of 21. I t assigned him four criminal history points, plac ing him in Criminal History Category III. A s a result, Lovely faced a Sentencing G uidelines range of 46 to 57 months. T he district court sentenced Lovely to the bottom of that range

— 46 months

— followed by two year s of supervised release.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 4, 2019 Lyle W. Cayce Clerk Case: 18-11176 Document: 00515102943 Page: 1 Date Filed: 09/04/2019No. 18

- 11176

2 L ovely timely appeal ed , a rguing for the first time that the district court erred in calculating his total criminal history points. 1 Because , as Lovely concedes , he failed to object to the asserted error below, we review for plain error. See Unite d States v. Soza , 874 F.3d 884, 889 (5th Cir. 2017). “ A finding of plain error requires [Lovely] to make four showings: 1. there must have been an error; 2. that was plain; 3. that affected the defendant’s substantial rights; and 4. that ‘ seriously affects the fairness, integrity, or public reputation of judicial proceedings. ’ ” United States v. Urbina

- Fuentes , 900 F.3d 687, 691

– 92 (5th Cir. 2018) (quoting United States v. Olano , 507 U.S. 725, 731

– 35 (1993)). The first two prongs

— “ error ” that was “plain”

— are conceded by the government

. T he PSR assigned Lovely a criminal history point based on a Texas guilty

- plea conviction for evading arrest, for which he was sentenced to fifteen days in jail. T hat was a clear mistake: T he Guidelines inst ruct that certain prior offenses 2 count against a defendant’s criminal history only if the sentence was “a term of imprisonment of at least thirty days.” U.S.S.G. § 4A1.2(c)(1) (emphasis added)

. The government instead focuses on prongs three and four . It claims both that the error did not affect Lovely’s substantial rights and also that it does not warrant the exercise of this c ourt’s discretion to remand. We disagree. A sentencing error affects a defendant’s substantial rights if he shows “‘ a reasonable p robability that, but for the district court ’ s misapplication of the

1 At sentencing, Lovely filed other objections to the calculation of his G uidelines range not relevant to this appeal.

2 Our court has determined that the Texas offense of “evading arrest” is sufficiently similar to the offense of “resisting arrest” enumerated in § 4A1.2(c)(1) of the Guidelines. See, e.g. , United States v. Alfaro , 408 F.3d 204, 210 (5th Cir. 2005); United States v. Rivas

Martinez , 120 F. App’x 533, 534 (5th Cir. 2004) ; United States v. Moore , 997 F.2d 30 , 33

– 34 & n.2 (5th Cir. 1993)

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3 Guidelines, he would have received a lesser sentence. ’” United States v. Islas

Saucedo , 903 F.3d 512, 520 (5th Cir. 2018) (quoting United States v. Martinez

Rodriguez , 821 F.3d 659 , 663

– 64 (5th Cir. 2016)). The Supreme Court has instructed 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, b e sufficient to show a reasonable probability of a different outcome absent the error.” Molina

Martinez v. United States , 136 S. Ct. 1338, 1345 (2016). That is the case here. Had the district court not incorrectly added a criminal history point for evading arrest, Lovely would have had three points instead of four, placing him in Category II instead of III. A s a result, Lovely’s G uidelines range would have been 41 to 51 months , instead of 46 to 57 months. See , e.g., United States v. Perez

- Mateo , 926 F.3d 21 6, 220 (5th Cir. 2019) (finding defendant’s substantial rights were affected where district court relied on incorrect Guidelines range). Nonetheless, the government claims there is no “reasonable p robability ” Lovely would have received a lesser sentence un der the correct range, pointing to the fact that the district court rejected Lovely’s bid for a downward variance

. W e disagree. In some cases, the court’s explanation of the sentence “ could make it clear that the judge based the sentence he or she selected on factors independent of the Guidelines.” Molina

- Martinez , 136 S. Ct. at 1347. Th at is not the case here. In rejecting a downward variance, the district court expressly noted that Lovely’s sentence “ should be within the advisory guideline range
. ” See , e.g., Perez

- Mateo , 926 F.3d at 220 (determining defendant’s substantial rights were affected where “[t] he Guidelines range clearly

‘ inform[ed] and instruct[ed] the district court’s determination of an appropriate sentence ’ ” (quoting Molina

- Martinez , 136 S. Ct. at 1346 ) )

. We thus conclude Case: 18-11176 Document: 00515102943 Page: 3 Date Filed: 09/04/2019No. 18

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4 Lovely has shown a reasonable probability that the G uidelines error affected his substantial rights. Finally, we may exercise “discretion” to correct a plain error “ only if it seriously affects the fairness, integrity, or p ublic reputation of judicial proceedings. ” Islas

- Saucedo , 903 F.3d at 521. This standard is typically met when failure to correct a plain Guidelines error affects a defendant’s substantial rights

. See Rosales

- Mireles v. United States , 138 S. Ct. 1897, 1911 (2018). However, “[t] here may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction. ” Id. at 1909 ; see also, e.g. , Perez

- Mateo , 926 F.3d at 220 (discussing possibility of “‘countervailing factors’ that obviate any need for error correction” (quoting Rosales

- Mireles, 138 S. Ct. 1897 , 1909 (2018) ) )

. The government contends this case presents one such factor because Lovely “advocated” for a sentence of “no more than 46 months.” W e disagree. By arguing for “no more than 46 months,” Lovely was merely asking the court to sentence him at the bottom of the 46

– 57 month Guidelines range , which at the time everyone thought w as the correct one . T he government points to no other countervailing factor that might justify denial of relief under the plain error framework

. We therefore VACATE Lovely’s sentence and REMAND for resentencing consistent with this opinion

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