IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20404

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JONATHAN AGUIRRE-ALVA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-208-1

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jonathan Aguirre-Alva (Aguirre) appeals his 48-

month sentence of imprisonment imposed following his guilty plea conviction

for being an illegal alien in possession of a firearm. Although Aguirre’s plea

agreement contained a waiver of appeal, the government is not seeking to

enforce that provision. Thus, we shall not enforce the waiver provision. See

United States v. Watson, 450 F.3d 184, 185 (5th Cir. 2006).

United States Court of Appeals

Fifth Circuit

F I L E D

January 26, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-20404

Aguirre contends that he was sentenced in violation of the law because the

district court did not order the probation office to prepare a presentence report

(PSR) in accordance with Federal Rule of Criminal Procedure 32, absent which

he did not have an opportunity to object to the sentencing guidelines range

employed by the district court. The government takes the position that the

district court plainly erred in failing to obtain a presentence report and in failing

to impose a term of supervised release.

In the district court, neither Aguirre nor the government objected to the

failure to require a PSR prior to sentencing. Therefore, our review is for plain

error. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). The

district court is required to order a presentence investigation and report prior

to sentencing unless the court (1) determines that the information in the record

will enable it to exercise its sentencing authority meaningfully under 18 U.S.C.

§ 3553 and (2) explains its findings on the record. FED. R. CRIM. P. 32(c)(1)(A);

see also U.S.S.G. § 6A1.1, p.s. and comment; United States v. Long, 656 F.2d

1162, 1164-65 (5th Cir. 1981).

It is not clear from the instant record that the district court had before it

sufficient information to “exercise its sentencing authority meaningfully”

pursuant to FED. R. CRIM. P. 32. By imposing sentence within one week after

Aguirre’s entry of a guilty plea, the district court did not afford the probation

office an adequate opportunity to make a complete presentence investigation and

deprived both parties of the opportunity to review that office’s findings to

determine whether they wished to dispute them. The record does not reflect

whether Aguirre’s estimated guidelines range was properly calculated or

whether his background reflected the existence of mitigating or aggravating

factors. Thus, there was no reliable evidence in the record on which the district

court could have made findings based on the preponderance of the evidence. See

United States v. O’Brien, 130 S. Ct. 2169, 2174 (2010). 

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No. 11-20404

Although, at the time of sentencing, the district court was required to give

reasons for not imposing a term of supervised release, a subsequent amendment

to U.S.S.G. § 5D1.1 provides that, generally, a term of supervised release should

not be imposed on an alien subject to deportation. § 5D1.1(c) (2011). Thus,

failure to impose a term of supervised release at Aguirre’s resentencing would

not result in error. See United States v. Davidson, 984 F2d 651, 655-56 (5th Cir.

1993).

The district court’s violation of FED. R. CRIM. P. 32(c)(1)(A), however, was

plain error that substantially affected Aguirre’s rights because, as noted above,

it is not clear that his sentencing guideline range was properly calculated or that

the sentence imposed was the result of a meaningful consideration of all relevant

factors. Puckett, 129 S. Ct. at 1429; Long, 656 F.2d at 1164-65. As the district

court erred in applying the Sentencing Guidelines, we must remand for

resentencing. 18 U.S.C. 3742(f)(1). It is not necessary, however, to have a

different district judge resentence Aguirre because there is no indication in the

record that the district court was biased against him or would ignore the

findings of the PSR if they should result in a sentencing guidelines range

different from the estimated range initially considered by the sentencing court. 

See Long, 656 F.2d at 1166, n.7; United States v. Robin, 553 F.2d at 10-11 (2d

Cir. 1977) (en banc). The district court’s comments also reflect that it relied

heavily on the seriousness of Aguirre’s possession-of-firearms offense, a relevant

factor in determining the sentence to be imposed. The record does not reflect

that returning the case to the same district judge who initially sentenced

Aguirre would give rise to an appearance of injustice. Id.

Accordingly, the sentence imposed is vacated, and the case is remanded

to the district court for resentencing before the same district court judge after

preparation of a PSR, unless on remand the sentencing judge should reassign

this case to another section of the court for reasons of his own.

SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.

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