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

No. 16- 40404

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JORGE ZAMORA -LOPEZ, also known as Jorge Barajas-Zamora, also known as Jorge Lopez Barajas-Zamora, also known as Jorge Zamora-Barajas, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:15-CR- 757 -1

Before STEWART, Chief Judge, HIGGINBOTHAM and COSTA, Circuit Judges. PER CURIAM: * Jorge Zamora -Lopez pleaded guilty to unlawfully reentering the United States following deportation in violation of 8 U.S.C. § 1326. Adopting the recommendation of the United States Probation Office’s presentencing investigation report, the district court applied the 16

- level “crime of violence”

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 Fif h Circuit 

### FILED May 8, 2017 Lyle W. Cayce Clerk Case: 16-40404 Document: 00513982888 Page: 1 Date Filed: 05/08/2017No. 16- 40404

2 sentencing enhancement under § 2L1.2 of the 2015 United States Sentencing Guidelines. The enhancement was based on Zamora

- Lopez’s pre -deportation conviction for resisting an executive officer in violation of California Penal Code § 69. With a base offense level of 8, plus the 16

- level crime -of-violence enhancement, minus a 3

- level reduction for acceptance of responsibility, Zamora- Lopez’s total offense level was 21. That level, coupled with a criminal history category of III, resulted in a Guidelines range of 46

– 57 months’ imprisonment. The district court sentenced Zamora

- Lopez to 48 mo nths’ imprisonment. Absent the crime -of- violence enhancement, even assuming that the same California conviction would have triggered an 8

- level “aggravated felony” or “drug trafficking” offense, the recommended Guidelines sentencing range would have been 18–24 months. Zamora-Lopez did not object at the time, but now argues that applying the enhancement was plain error. There are “four requirements for reversing a trial court based upon plain error review: (1) ‘there must be an error or defect— some sort of [d]eviation from a legal rule

— that has not been intentio nally relinquished or abandoned’; (2) ‘the legal error must be clear or obvious, rather than subject to reasonable dispute’; (3) ‘the error must have affected the appellant's substantial rights’; and (4) ‘if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error

— discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Escalante -Reyes , 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett v. United States , 556 U.S. 129, 135 (2009)). The government concedes clear and obvious error that affected Zamora

Lopez’s substantial rights, but urges us not to exercise ou r discretion to correct it. We accept that concession without passing on its legal correctness

. We are inclined to exercise our plain

- error discretion here, where the concededly Case: 16-40404 Document: 00513982888 Page: 2 Date Filed: 05/08/2017No. 16- 40404

3 erroneous enhancement effectively doubled the applicable Guidelines sentencing range
. The judgment of the district court is VACATED , and the

ca se is REMANDED for resentencing. Case: 16-40404 Document: 00513982888 Page: 3 Date Filed: 05/08/2017