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

No. 15

- 11196

Cons w/ No. 15

- 11197 UNITED STATES OF AMERICA,
Plaintiff

- Appellee
v. CHRISTOPHER BENJAMIN BLANTON , Defendant

- Appellant

Appeal s from the United States District Court for the Northern District of Texas USDC No. 4:14

- CR

- 225

- 1

Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges

. PER CURIAM: * Regarding Christopher Benjamin Blanton’s six challenges to his sent ences, imposed after his guilty

- plea convictions of possession of a firearm by a conv icted felon, and conspiracy to commit pharmacy burglary , primarily at issue is whether , under plain

- error review, the district court’s reliance on

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limi ted circumstances set forth in 5th Cir. R. 47.5.4.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

### FILED April 4, 2017 Lyle W. Cayce Clerk Case: 15-11196 Document: 00513939213 Page: 1 Date Filed: 04/04/2017No. 15

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2 ou tdated Sentencing Guidelines requires resentencing

. VACATED and REMANDED. I. Between November 2013 and July 2014, Blanton and co - conspirators made numerous attempts, some successful, to burglarize Walgreens pharmacies in Texas and Oklahoma. I n November 2 014, Blanton was indicted in the northern district of Texas for possession of a firea rm by a felon

. That December , he and five other s were indicted in the western d istrict of Oklahoma for conspiracy to “break into Walgreens Pharmacies and steal controlled substances for personal use and illegal distribution”. Blanton ’s conspiracy charge was transferred to join his firearm

- possession charge in the northern d istrict o f Texas. In addition , relative to the Walgreens bu rglaries, Blanton was convicted, before and after federal sentencing, in two Texas counties on state charges

. In the n orthern d istrict of Texas, Blanton pleaded guilty to one count of possession of a fir earm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of conspiracy to commit pharmacy burglary, in violation of 18 U.S.C. § § 2118 (d) and 2. Hi s sentencing hearing occurred on 12 November 2015, 11 days after the 2015 Sentencing Guidelines went into effect. See U.S.S.G. § 2B2.1(b)(2)(B) (1 Nov. 2015 ed.). For the conspiracy charge , the court overruled Blanton ’s objections to enhancements recommended by the presentence investigation report (PSR) and adopted the PSR’s Guidelines calculations. In accordance with the PS R, which was based on the 2014 Guidelines, the court , inter alia , imposed a one level enhancement , pursuant to Guideline § 2B2.1(b)(2)(B) (1 Nov. 2014 ed.) , for a Walgreens burglary resulting in a $2,653. 34 loss. Blanton was sentenced, Case: 15-11196 Document: 00513939213 Page: 2 Date Filed: 04/04/2017No. 15

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3 inter alia , to consecutive terms of 37 months for the firearm conviction and 41 months for the conspiracy conviction. II. Blanton contends the court : (1 ) erred by using an incorrect Guidelines version; (2 ) erred by not grouping the offenses under Guideline § 3D1.1; (3) erred by applying 13 “ pseudocounts ” of conspiracy under § 3D1.1; ( 4 ) erroneously applied the Guideline § 2K2.1(b)(6) enhancement for possession of a firearm in connection with another felony o ffense; ( 5 ) erroneously applied the Guideline § 3C1.2 enhancement f or reckless endangerment; and ( 6 ) should have ordered any sentences , pursuant to Blanton’s anticipated state indictments , to run concurrently to his federal sentences , under Guideline § 5G1.3(c), and granted a downward depar ture for time served on a Texas conviction , under Guideline § 5K2.23. I ssue five was preserved and w ould be reviewed here for clear error. The other issues , however, were not preserved; therefore, they would be rev iewed here only for plain error. I t is necessary , however, to review only the issue concerning the outdated 2014 Guidelines

. Blanton made a blanket objection to the procedural and substantive reasonableness of the sentence ; he acknowledges he did not object to the court’s use of those Guidelines. Pursuant to the 2014 Guidelines, in effect at the time of the final PSR addendum, a crime resulting in a minimum $2,500 l oss merited a one

- level enhancement

. See U.S.S.G. § 2B2.1 (b)(2)(B) (1 Nov. 2014 ed.). On the other hand, the 2015 Guidelines increased the minimum threshold to $5,000, so that the earlier

- referenced Walgreens loss would no longer trigger the one

- level increase. See U.S.S.G. § 2B2.1(b)(2)(B) (1 Nov. 2015 ed.). Accordingly, Blanton challenges the court ’s using the 2014 Guidelines on 12 November 2015, after the 2015 version took effect. Case: 15-11196 Document: 00513939213 Page: 3 Date Filed: 04/04/2017No. 15

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4 Although post

- Booker , the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, s uch as improperly calculating the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 48

– 51 (2007). As noted, b ecause Blanton did not preserve t he outdated

Guidelines issue in district court, review is only for plain error. E.g. , United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012). Plain

- error review explores four elements. See Molina

- Martinez v. United States , 136 S. Ct. 1338, 1343 (2016). The first three are: (1) an error “not . . . intentionally relinquished or aba ndoned”; (2) that is “clear or obvious”; (3) and “affected the defendant’s substantial rights”. Id. “Once these three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affe cts the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted). T he Government concedes the first two elements are satisfied ; therefore,
we proce ed to the third: substantial

- rights affecte d vel non . In the light of recent Supreme Court precedent, Molina

- Martinez , as discussed infra , Blanton establishes the use of the 2014 Guidelines violated his substantial rights. See i d. at 1345. “When 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 outc ome absent the error.” Id. As our court established, [p] ursuant to § 1B1.11(a) and 1B1.11(b)(1), p.s., and 18 U.S.C. § 3553(a)(4)(A), a district court should apply the Guidelines in effect on the date the defendant is sentenced , unless the application
o f such Guidelines would violate the Ex Post Facto Clause of the Case: 15-11196 Document: 00513939213 Page: 4 Date Filed: 04/04/2017No. 15

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5 Constitution, in which event, the Guidelines in effect on the date of the offense should be used. United States v. Burgos , 137 F.3d 841, 843 (5th Cir. 1998) (emphasis added)

. Because the Ex P ost Facto Clause is not at issue here, the district court should have applied the Guidelines in effect on the sentencing date. T he Government maintains Blanton ’s substantial rights were not affected because the correctly

- calculated Guidelines range for the conspiracy conviction (37

- 46 months) overlaps with the improperly

- calculated range (41

- 51 months) , and Blanton’s 41

- m onth sentence for that conviction falls within both

. T he Supreme Court , however, remanded in Molina

- Martinez in similar circumstances, finding “at least a reasonable probability” a lower sentence would have been imposed . 136 S. Ct. at 1348. T he same “at least reasonable probability” is present here ; in short , Blanton ’s substantial rights were affected by the error. Our court’s precedent on the fourth plain

- error prong

— whether the court should exercise discretion to remedy the error

— weighs in favor of remedy for

a situation like Blanton ’s , in which the sentence exceeded the lower end of the properly

- calculated sentencing range by four months. Compare United States v. Martinez

- Rodriguez , 821 F.3d 659, 664

– 67 (5th Cir. 2016) (36

- month disparity between applied and proper Guidelines ranges; r emanded), and United States v. Segura

- Sanchez , 452 F. App’x 471, 474

– 75 (5th Cir. 20 11) (sentence exceeded properly

- calculated range by three months; remanded) , with United States v. Emanuel

- Fuentes , 639 F. App’x 974 , 977 (5th Cir. 2015) (sentence one month above proper range not “materially or substantially” higher; no remand) , and United States v. Avalos

- Martinez , 700 F.3d 148, 154 (5th Cir. 2012) (sentence one month higher than proper range; no remand). Case: 15-11196 Document: 00513939213 Page: 5 Date Filed: 04/04/2017No. 15

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6 Because Blanton ’s sentenc e was improperly calculated using outdated Guidelines, because a properly

- calculated Guidelines range w ould have been four mo nths lower for this error alone , and because the court expressly tied its sentencing decision to the low end of the erroneous - applied Guidelines sentencing range , this reversible plain error “seriously affect s the fairness, integrity or public reputation of judicial proceedings”

. Molina

- Martinez , 136 S. Ct. at 1343. Accordingly, we exercise our discretion to correct the error

. III. For the forgoi ng reasons, the judgment is VACATED , and this matter is REMANDED to district court for re sentencing in accordance with the 2015 version of the Sentencing Guidelines. Case: 15-11196 Document: 00513939213 Page: 6 Date Filed: 04/04/2017