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 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

Fif h Circuit

FILED

May 8, 2017

Lyle W. Cayce

Clerk

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No. 16-40404

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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 months’ 

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 

intentionally 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 ZamoraLopez’s substantial rights, but urges us not to exercise our 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 

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No. 16-40404

3 

erroneous enhancement effectively doubled the applicable Guidelines 

sentencing range. The judgment of the district court is VACATED, and the 

case is REMANDED for resentencing. 

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