### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 f o l l o w i ng his guilty plea conviction for being an illegal alien in posse s sion of a firearm. Although Aguirre’s plea agreement contained a waiver of appeal, th e 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. 200 6). U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary26 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20404 Document: 00511737201 Page: 1 Date Filed: 01/26/2012No. 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 po s iti o n 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 investi g a ti o n 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. F E D
. R. C R I M
. P. 32(c)(1)(A);

s e e a ls o U.S.S.G. § 6A1.1, p.s. and comment; United States v. Long, 656 F

. 2 d 1162, 1164-65 (5th Cir. 1981). It is not clear from the instant record that the district court had before it sufficient inf

o r m a tion to “exercise its sentencing authority meaningfully” pursuant to F E D
. R

. C R I M
. P. 32. By imposing sentence within one week after Aguirre’s entry of a guilty plea, the district court did not af f o r d th e probation

of f ic e an adequate opportunity to make a complete present e nc e inve s ti gatio n an d deprived both parties of the opportunity to review that off i c e ’ s f indings to determine whether the y w ished 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 (20 10).

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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 deportati o n . § 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 F E D
. R. C R I M
. 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, h o w e v e r , t o have a different district judge resentence Aguirre because there is no indication in the record that the district court was biased against h i m 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 . Ro b i n, 553 F.2d at 10-11 (2d Cir. 1977) (en banc). The district court’ s c o m m e nt s also reflect that it relied heavily on the seriousness of Aguirre’s possession-of-firearms offense, a relevant fac t o r in determining the sentence to be imposed. The record does not reflect that returning the c a s e to the same district judge who initially sentenced Aguirre would give rise to an appearance of injustice. Id. Ac c o r di n gly, the sentence imposed is vacated, and the case is remanded to the dis t ri ct court for resentencing before the same district court judge after preparation of a PSR, unless on remand the sente n c i n g j u d ge 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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