United States Court of Appeals

For the Eighth Circuit

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No. 17-1157

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Wilmer Arqui Vargas-Rodriguez

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Aberdeen

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Submitted: March 12, 2018

Filed: June 6, 2018

[Unpublished]

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Before GRUENDER, BEAM, and KELLY, Circuit Judges.

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PER CURIAM.

Wilmer Arqui Vargas-Rodriguez and two co-defendants each pleaded guilty

to one count of identity theft. Vargas-Rodriguez’s uncontested Guidelines range was

18 to 24 months, but the district court varied upwards and sentenced him to 46

months. In doing so, the district court relied primarily on two facts: (1) VargasRodriguez stole a car from a rental company in Las Vegas and drove it to South
Dakota, and (2) Vargas-Rodriguez installed credit card skimmers on gasoline pumps

to steal card numbers for use on fraudulent credit and debit cards. These facts, the

district court held, made Vargas-Rodriguez more culpable than his co-defendants,

whom the court had already sentenced in separate proceedings. On appeal, VargasRodriguez contends that the district court committed procedural error and imposed

a substantively unreasonable sentence. “In reviewing a sentence for procedural error,

we review the district court’s factual findings for clear error and its application of the

guidelines de novo.” United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). We

review the sentence imposed for abuse of discretion. United States v. Feemster, 572

F.3d 455, 461 (8th Cir. 2009) (en banc).

As to procedural error, Vargas-Rodriguez contends that the district court’s

variance was based on clearly erroneous facts. See id. (noting that “[p]rocedural error

includes . . . selecting a sentence based on clearly erroneous facts . . .” (cleaned up)). 

Because Vargas-Rodriguez did not raise this objection below, we may reverse only

if the district court committed a plain error that affects Vargas-Rodriguez’s

substantial rights. United States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). 

Though plain error review of sentencing decisions places a heavy burden on

appellants, Vargas-Rodriguez has met that burden. Having thoroughly reviewed the

record, we find no evidence that Vargas-Rodriguez stole a car from a rental company

in Las Vegas. And, although the record references manufacturing and using stolen

credit cards, we are unsure how the district court concluded that Vargas-Rodriguez

actually installed card skimmers on gasoline pumps. Finding no record evidence

from which we can intuit the district court’s conclusions, we must hold that the

sentencing variance was plainly erroneous. Given the variance nearly doubled

Vargas-Rodriguez’s sentence, we have little trouble concluding it affected his

substantial rights. Because the sentence suffered from plain procedural error, we

need notreach Vargas-Rodriguez’s arguments concerning substantive reasonableness.

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We vacate and remand for resentencing. 

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