from the United States District Court for the Southern
District of Texas
WIENER, HIGGINSON, and COSTA, Circuit Judges.
COSTA, CIRCUIT JUDGE.
Rios Marroquin pleaded guilty to illegal reentry. He was
sentenced within the 21 to 27 months Guidelines range to 25
months in prison. That range was based on a criminal history
category of V, which applies to the 11 criminal history
points assigned to Marroquin. Two of those points were for a
North Carolina conviction for a drug offense that occurred in
2005. Another two points were for a North Carolina conviction
for violating the same statute in 2006. The North Carolina
court had consolidated those two cases into a single judgment
and sentenced Marroquin to a single six-to-eight-month
argues that it was error to assign criminal history points
for both North Carolina offenses given that they were
consolidated into a single judgment. Because he did not raise
this objection in the district court, Marroquin must show an
error that was plain and that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he can do so, then we have the discretion to
remedy the error if it "seriously affect[s] the
fairness, integrity or public reputation" of the
proceeding. Id. (alteration in original) (citation
easily clears the first hurdle. It was error to score the
consolidated sentence twice. The North Carolina
"Consolidation of Sentences" statute provides that
if "an offender is convicted of more than one offense at
the same time, the court may consolidate the offenses for
judgment and impose a single judgment for the consolidated
offenses." N.C. Gen. Stat. Ann. § 15A-1340.15(b).
That is what the state court chose to do for Marroquin's
two offenses: it consolidated them into a single judgment and
imposed a single sentence. Under the Guidelines, which assign
criminal history points for "each prior sentence"
rather than each offense, that single sentence is assigned
one score. U.S.S.G. § 4A1.1 (2014). Straightforward
interaction of the North Carolina statute and the Sentencing
Guidelines thus demonstrates that the consolidated North
Carolina offense should have received a single score. This is
also the view of the Fourth Circuit, see United States v.
Davis, 720 F.3d 215, 219 (4th Cir. 2013), which is given
deference in its interpretation of the law of a state within
its jurisdiction, see Phillips v. Washington Legal
Found., 524 U.S. 156, 167 (1998). As the North Carolina
offenses resulted in a single sentence of at least sixty days
but less than one year and one month, two points should have
been assigned instead of four. U.S.S.G. § 4A1.1(b).
government argues that any error was not obvious, relying on
our unpublished decision in United States v.
Rodriguez-Prieto, 491 Fed.Appx. 514 (5th Cir. 2012) (per
curiam). But in Rodriguez-Prieto, the district court
treated a consolidated North Carolina sentence the way
Marroquin's should have been treated: it assigned one
criminal history score based on the sentence's length.
Id. at 515 (explaining that one of the
defendant's North Carolina offenses was not assigned any
points because it was "counted together" as a
result of the consolidated sentence law). At issue in
Rodriguez-Prieto was the district court's
decision to then add a single point for the North Carolina
offense that was not assigned ordinary criminal history
points because it was an unscored crime of violence.
Id. This was pursuant to what was then section
4A1.1(f) of the Guidelines (now section 4A1.1(e)), which adds
one point for a sentence "resulting from a conviction
for a crime of violence that did not receive any points"
under the standard scoring rules. U.S.S.G. § 4A1.1(f)
(2009)); U.S.S.G. § 4A1.1(e) (2014). That provision does
not apply to Marroquin's drug offenses. There nonetheless
is some language in Rodriguez-Prieto that suggests
it would not be error to separately assess criminal history
points for each of the consolidated offenses. Ambiguous
language in an unpublished opinion addressing a distinct
issue is not enough, however, to undermine the clear answer
that the North Carolina statute, Sentencing Guidelines, and
Fourth Circuit case law provide to the question we confront.
See United States v. Silva-De Hoyos, 702 F.3d 843,
849 (5th Cir. 2012) (finding obvious error when the
unambiguous language of a statute revealed the error).
next issue is whether Marroquin can show that this obvious
error affected his sentence. Taking away the two points that
should not have been included reduces his criminal history
category from a V to IV. That would result in an advisory
Guidelines range of 15 to 21 months instead of the range of
21 to 27 months the court used in sentencing Marroquin. When
"a defendant is sentenced under an incorrect Guidelines
range, " the error will usually result in prejudice to
the defendant. Molina-Martinez v. United States, 136
S.Ct. 1338, 1345 (2016). The prejudice is even stronger when
the correct Guidelines range is below the defendant's
sentence, as it is for Marroquin.
unique circumstances may overcome this rule that a Guidelines
error ordinarily will harm the defendant. Id. at
1346. The government tries to show this is one of those
atypical cases by arguing that another criminal history
scoring error inured to Marroquin's benefit. Marroquin
was convicted of another North Carolina drug offense that
like the consolidated sentence resulted in a prison term of
six to eight months. But the state court suspended that
sentence and placed Marroquin on 30 months' supervised
probation, with 30 days imprisonment as a condition of
probation. The government contends that Marroquin should have
received two points instead of one for this conviction
because the court ordered that Marroquin receive credit for
119 days that he served in custody prior to the suspension of
the sentence. Those 119 days spent in custody should have,
the government argues, resulted in two points for this
sentence rather than the one it was assigned in the
See United States v. Fernandez, 743 F.3d 453, 455-56
(5th Cir. 2014) (discussing the effect of a "time served
'credit'"). That additional point would have
kept Marroquin in Category V even with a correction for the
consolidated North Caroline sentence. But the judgment is
ambiguous at best about the effect of the 119-day credit. The
court checked a box saying the credit is being "applied
toward the . . . imprisonment required for special
probation[.]" That term of imprisonment was just 30
days. Not checked is a box that would have applied the time
served more generally to "the sentence imposed
above." Because the credit may have just satisfied the
30-days in custody that was a condition of probation, rather
than the lengthier suspended sentence, the government has not
shown this to be a case in which prejudice did not result
from an error that affected the Guidelines range.
leaves the requirement that Marroquin show the error affected
the fairness, integrity, or reputation of the proceeding.
This error that caused Marroquin to be sentenced based on a
misinterpretation of the state criminal laws under which he
had been convicted would create doubt about the integrity of
the process. And although the four-month disparity between
his sentence and the corrected Guidelines range is not
sizeable, we have corrected errors with a similar impact.
See, e.g., United States v. Guillen-Cruz,
853 F.3d 768, 775-77 (5th Cir. 2017) (finding plain error
when the imposed sentence was eight months above the correct
Guidelines range); United States v.
Santacruz-Hernandez, 648 Fed.Appx. 456, 458 (5th Cir.
2016) (per curiam) (finding plain error when the imposed
sentence was two months above the correct Guidelines range);
United States v. Carrizales-Jaramillo, 303 Fed.Appx.
215, 217 (5th Cir. 2008) (per curiam) (finding plain error
when the imposed sentence was one month above the correct
Guidelines range). We choose to correct this error in light
of its effect on the sentence combined with the nature of the
final note, Marroquin was simultaneously sentenced on his new
illegal reentry offense and for the revocation of his
supervised release on a prior one (he received a consecutive
eight-month sentence for the revocation). The appeals of the
two were consolidated. Although Marroquin does not identify a
separate error in his revocation proceeding, the government
agrees with him that vacatur of the new sentence should also
result in vacatur of the revocation sentence so the district
court can consider both anew given the potential impact of
one of the sentences on the other. So we remand for a full
resentencing at which the government can raise its argument
about the 119-day credit.
judgments are VACATED and both matters are REMANDED for