IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11196

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UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CHRISTOPHER BENJAMIN BLANTON,

Defendant - Appellant

Appeals 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 

sentences, imposed after his guilty-plea convictions of possession of a firearm 

by a convicted 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 limited 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

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outdated Sentencing Guidelines requires resentencing.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. In November 2014, Blanton was indicted 

in the northern district of Texas for possession of a firearm by a felon. That 

December, he and five others were indicted in the western district 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 

district of Texas. In addition, relative to the Walgreens burglaries, Blanton 

was convicted, before and after federal sentencing, in two Texas counties on 

state charges. 

In the northern district of Texas, Blanton pleaded guilty to one count of 

possession of a firearm 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. His 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 PSR, 

which was based on the 2014 Guidelines, the court, inter alia, imposed a onelevel 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, 

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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 offense; (5) erroneously applied the 

Guideline § 3C1.2 enhancement for 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 departure for time served on a Texas

conviction, under Guideline § 5K2.23. Issue five was preserved and would be 

reviewed here for clear error. The other issues, however, were not preserved; 

therefore, they would be reviewed here only for plain error. 

It 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 loss 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.

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Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). As noted, because Blanton did not preserve the outdatedGuidelines 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 abandoned”; (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 affects the fairness, integrity or 

public reputation of judicial proceedings.” Id. (internal quotation marks and 

citation omitted). 

The Government concedes the first two elements are satisfied; therefore,

we proceed to the third: substantial-rights affected 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 

id. 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 outcome 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 

of such Guidelines would violate the Ex Post Facto Clause of the 

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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 Post Facto Clause is not at issue here, the district court should 

have applied the Guidelines in effect on the sentencing date.

The 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-month sentence for that conviction falls within 

both. The 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. The 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; remanded), and 

United States v. Segura-Sanchez, 452 F. App’x 471, 474–75 (5th Cir. 2011) 

(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). 

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Because Blanton’s sentence was improperly calculated using outdated 

Guidelines, because a properly-calculated Guidelines range would have been 

four months 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 affects 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 forgoing reasons, the judgment is VACATED, and this matter is

REMANDED to district court for resentencing in accordance with the 2015 

version of the Sentencing Guidelines.

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