from the United States District Court for the Southern
District of Texas
HIGGINSON and WILLETT, Circuit Judges, and BROWN, District
STEPHEN A. HIGGINSON, CIRCUIT JUDGE
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.
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
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.
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,
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).
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.
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.
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).
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 ...