United States v. Rodriguez-Pena

957 F.3d 514

UNITED STATES of America, Plaintiff – Appellee,

v.Jesus RODRIGUEZ-PENA, Defendant – Appellant.

No. 18-40978

United States Court of Appeals, Fifth Circuit.

April 27, 2020

John Richard Berry, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff - Appellee

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant - Appellant

Before HAYNES and OLDHAM, Circuit Judges, and HANEN,^* District Judge.

PER CURIAM:

Jesus Rodriguez-Peña appeals his 44-month sentence for illegal reentry under 8 U.S.C. § 1326(a) – (b). He argues the district court plainly erred in calculating his Guidelines range. The Government concedes the calculation error and challenges only whether the error was prejudicial and requires correction. On the facts of this case, we vacate and remand for resentencing.

On May 5, 2018, agents from Customs and Border Protection encountered Rodriguez-Peña near Penitas, Texas. Rodriguez-Peña had been deported or removed from the United States in 2002, in 2007, and most recently on January 24, 2017. So the Government charged him with illegally reentering the country after having been previously removed. See 8 U.S.C. § 1326(a) – (b). Rodriguez-Peña pleaded guilty on June 28, 2018.

Before the sentencing hearing, the probation officer prepared a Presentence Report ("PSR"). The PSR assigned an offense level of 17 and a criminal history category of III. That produced a recommended Guidelines range of 30–37 months.^†

The PSR’s criminal-history calculation was premised on two offenses. First, in 2003, Rodriguez-Peña pleaded guilty to the felony of indecency with a child involving sexual contact. See TEX. PENAL CODE § 21.11. The child involved in that incident was Rodriguez-Peña’s 14-year-old cousin.

After serving a 42-month sentence for that offense, Rodriguez-Peña was removed in 2007. He returned and eventually pleaded guilty to illegal reentry. That was his second relevant offense. He then served a 41-month sentence and was removed again on January 24, 2017.

The PSR counted each of those offenses—indecency with a child and illegal reentry—for three points each, leading to a total of six criminal history points. That placed Rodriguez-Peña in criminal history category III.

At sentencing, the judge emphasized the need for Rodriguez-Peña to not illegally reenter the country again. The judge further explained that since a 41-month sentence had proved insufficient to deter Rodriguez-Peña, "a graduated sentence, something bigger than [41 months]" would likely be appropriate. So, although the judge adopted the PSR’s findings, he also determined that criminal history category III substantially underrepresented the seriousness of Rodriguez-Peña’s prior criminal conduct and did not reflect "the likelihood of recidivism." The judge then opted for criminal history category IV, which had a range of 37–46 months. He sentenced Rodriguez-Peña to 44 months in prison. Rodriguez-Peña did not object then. He now appeals.

As Rodriguez-Peña concedes, our review is for plain error. Plain error requires a defendant to show: "(1) that the district court committed an error (2) that is plain and (3) affects his substantial rights and (4) that failure to correct the error would seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Sanchez-Hernandez , 931 F.3d 408, 410 (5th Cir. 2019) (internal quotation marks omitted).

As the Government concedes, the first two prongs of plain error are met. At issue, then, are prongs three and four. In most cases where prong three is satisfied, this court "must ‘exercise o[ur] discretion’ to remand." United States v. del Carpio Frescas , 932 F.3d 324, 333 (5th Cir. 2019) (quoting Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1909, 201 L.Ed.2d 376 (2018) ). That is because usually "a plain Guidelines error that affects substantial rights" will also satisfy the fourth prong of plain-error review. Rosales-Mireles , 138 S. Ct. at 1908.

At prong three, Rodriguez-Peña argues that without the plain error in his Guidelines calculation, his "departure range" would have dropped to 15–21 months. We note the district court appeared to base its sentence in large part on the apparent insufficiency of Rodriguez-Peña’s previous 41-month sentence. The district judge said, "you already got a 41-month sentence in here, you’ve committed the same crime over again and—you know, likely I should give you a graduated sentence, something bigger than that to prevent you from coming back next time, when you didn’t stay out even a year." (Emphasis added). In that sense, this case is much like Sanchez-Hernandez , in which this court affirmed the same district judge’s decision to impose "graduated punishment" on a man who sexually abused a child and had a history of illegal reentry. See 931 F.3d at 411–12.

Unlike in Sanchez-Hernandez , however, the district judge in this case did mention the incorrect Guidelines range in explaining the sentencing decision. The judge noted that he had considered the appropriate sentencing factors and found "that a sentence within these guidelines satisfies them ...." Moreover, the district judge indicated that he "depart[ed] from the guideline range for one or more reasons provided in the Guidelines Manual." So the Guidelines apparently played a more significant role here than in Sanchez-Hernandez . Cf. United States v. Wikkerink , 841 F.3d 327, 338 (5th Cir. 2016) ("[I]n the normal course, a non-Guideline sentence still uses the Guidelines range as a reference point."). And "[e]ven if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence. " Peugh v. United States , 569 U.S. 530, 542, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) (internal quotation marks omitted). The Supreme Court has also said that if "the record is silent as to what the district court might have done had it considered the correct Guidelines range, the court’s reliance on an incorrect range in most instances will suffice to show an effect on the defendant’s substantial rights." Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1347, 194 L.Ed.2d 444 (2016).

That is not true in all cases. Id. at 1346. The Molina-Martinez Court was quite clear that "appellate courts retain broad discretion in determining whether a remand for resentencing is necessary." Id. at 1348. As an example, the Court pointed to "mechanisms short of a full remand to determine whether a district court in fact would have imposed a different sentence absent the error." Id. (citing United States v. Currie , 739 F.3d 960, 967 (7th Cir. 2014) ). We asked the parties to prepare to discuss the possibility of a limited remand in this case. At oral argument, the Government rejected that option. So we decline to apply it here.

On the facts of this case and under current Supreme Court precedent, we hold that Rodriguez-Peña has met prongs three and four of plain error review. See del Carpio Frescas , 932 F.3d at 333.

* * *

We VACATE the sentence and REMAND to allow the district court to resentence Rodriguez-Peña in accordance with this opinion. Nothing in this opinion precludes the district court from exercising its discretion to depart from the Guidelines and choose any sentence permitted by 18 U.S.C. § 3553.

ANDREW S. OLDHAM, Circuit Judge, concurring:

Another day, another "plain error" vacatur. All because of an error that the defendant failed to notice in the district court but now contends is "plain" and obvious. What’s not obvious is whether the error prejudiced Rodriguez-Peña in any way. The Supreme Court told us that, in cases like this one, we should explore remedies that are less severe than a full-blown vacatur and resentencing.

Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1348–49, 194 L.Ed.2d 444 (2016). The "limited remand" is one such remedy. See id. But in this case, the Government disavowed it. In an appropriate case, the limited remand strikes me as a wise solution to the plain-error problem.

I.

Let’s start with plain error. To meet that standard, a "defendant must show (1) that the district court committed an error (2) that is plain and (3) affects his substantial rights and (4) that failure to correct the error would seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Sanchez-Hernandez , 931 F.3d 408, 410 (5th Cir. 2019) (quotation omitted). The first three prongs of the plain-error standard come from the text of Rule 52(b) of the Federal Rules of Criminal Procedure. It says: "A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention." FED. R. CRIM. P. 52(b) ; see also United States v. del Carpio Frescas , 932 F.3d 324, 343 (5th Cir. 2019) (Oldham, J., concurring).

The textual hook for the fourth prong is the word "may." See del Carpio Frescas , 932 F.3d at 343 (Oldham, J., concurring). That’s the stuff of discretion: The court "may ... consider[ ]" the forfeited error. See Henderson v. United States , 568 U.S. 266, 282 n.1, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (Scalia, J., dissenting); cf. Kingdomware Techs., Inc. v. United States , ––– U.S. ––––, 136 S. Ct. 1969, 1977, 195 L.Ed.2d 334 (2016) (noting that "may" connotes discretion).

The Supreme Court gave us guidance for the exercise of that discretion in United States v. Olano , 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). There, the Court explained that Rule 52(b) "leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that...