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United States v. Perez-Mateo

United States Court of Appeals, Fifth Circuit

June 10, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ELEAZAR PEREZ-MATEO, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District Judge. [*]

          STEPHEN A. HIGGINSON, CIRCUIT JUDGE

         In May 2018, Eleazar Perez-Mateo pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. Using the 2016 Guidelines Manual, the Probation Office's Pre-Sentence Report ("PSR") calculated for Perez-Mateo a total offense level of 13 and a criminal history category of IV, resulting in a Guidelines imprisonment range of 24 to 30 months. Relevant to this appeal, in calculating Perez-Mateo's criminal history score, the PSR assessed two points for a February 2007 misdemeanor conviction for aiding and abetting illegal entry.

         Neither the government nor Perez-Mateo objected to the PSR. Further, at the August 2018 sentencing hearing, Perez-Mateo verbally confirmed that "everything was correct" in the PSR. The district court accordingly adopted the PSR's offense level and criminal history calculations. Before pronouncing a sentence, the district court noted that Perez-Mateo had "consistently been involved in criminal conduct for a good amount of the time that [he had] been here in the United States." Yet, the district court recognized that Perez-Mateo had multiple minor children living in the United States, including a fourteen-year-old suffering from cancer. Having laid out these considerations, the district court explained that it would decline to vary upwards: "So I'll leave you here, but I'm going to sentence you at the high end." The district court sentenced Perez-Mateo to 30 months of imprisonment and three years of supervised release.

         Perez-Mateo timely filed a notice of appeal. On appeal, Perez-Mateo argues for the first time that his February 2007 conviction should not have counted towards his criminal history score. Without the February 2007 conviction, his criminal history category would have been III, not IV, resulting in a Guidelines imprisonment range of 18 to 24 months instead of 24 to 30 months. Perez-Mateo contends that this was a plain error affecting his substantial rights, see Fed. R. Crim. Pro. 52(b), and that this court should exercise its discretion to correct the error.

         I.

         The federal Sentencing Guidelines are "complex," so "there will be instances when a district court's sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed. In that circumstance, because the defendant failed to object to the miscalculation, appellate review of the error is governed by Federal Rule of Criminal Procedure 52(b)." Molina-Martinez v. United States, 136 S.Ct. 1338, 1342-43 (2016).

         Under Rule 52(b), a court of appeals has discretion to correct an error newly raised on appeal only if the error (1) was not intentionally relinquished or abandoned, (2) was plain, clear, or obvious, and (3) the error affected the defendant's substantial rights. Id. at 1343 (citing United States v. Olano, 507 U.S. 725 (1993)). Where those three conditions are met, and the error also "'seriously affects the fairness, integrity or public reputation of judicial proceedings, '" then "the court of appeals should exercise its discretion to correct the forfeited error." Id. (quoting Olano, 507 U.S. at 736).

         A Guidelines error that satisfies the first three Olano factors "ordinarily" also satisfies the fourth and "warrants relief under Rule 52(b)." Rosales-Mireles v. United States, 138 S.Ct. 1897, 1907 (2018). As the Supreme Court recently explained in Rosales-Mireles, plain Guidelines error affecting a defendant's substantial rights "usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than necessary to fulfill the purposes of incarceration." Id. (quotation omitted). Allowing such a defendant to be re-sentenced with corrected Guideline calculations reduces the risk of unnecessary jail time and "exhibit[s] regard for fundamental rights and respect for prisoners as people." Id. (quotation omitted). In the ordinary case, additional factors favoring error correction are that (1) re-sentencing is "relative[ly] eas[y]," and (2) "Guidelines miscalculations ultimately result from judicial error" rather than a defendant's strategy. Id. at 1908.

         The government does not argue that Perez-Mateo intentionally relinquished or abandoned his appeal position. Thus, we turn to the second, third, and fourth Olano conditions.

         A.

         We review the district court's interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Lawrence, 920 F.3d 331, 334 (5th Cir. 2019). Under Rule 52(b), an error is plain if it is not "subject to reasonable dispute." Puckett v. United States, 556 U.S. 129, 135 (2009).

         Section 4A1.2 of the Sentencing Guidelines governs whether prior sentences count for criminal history purposes. "Any prior sentence of imprisonment exceeding one year and one month" is counted if it (1) was "imposed within fifteen years of the defendant's commencement of the instant offense," or (2) "result[ed] in the defendant being incarcerated during any part of such fifteen-year period." § 4A1.2(e)(1). In addition, "Any other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense is counted." § 4A1.2(e)(2). A defendant's prior sentence is not counted towards his or her criminal history score if it ...


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