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United States v. Sanchez-Arvizu

United States Court of Appeals, Fifth Circuit

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARIO SANCHEZ-ARVIZU, Defendant-Appellant.

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

          Before JOLLY, DENNIS, and ELROD, Circuit Judges.

          PER CURIUM.

         Mario Sanchez-Arvizu pleaded guilty to illegal reentry and was sentenced to 42 months in prison. He appeals, arguing for the first time that the district court erred by applying a 16-level enhancement for his prior conviction for indecency with a child. Concluding that the district court committed reversible plain error, we VACATE his sentence and REMAND for resentencing.

         I

         Sanchez-Arvizu pleaded guilty to illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Applying the 2015 Sentencing Guidelines, the probation officer assessed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a determination that Sanchez-Arvizu was deported after a conviction for a "crime of violence"-his Texas conviction for indecency with a child by sexual contact in violation of Texas Penal Code section 21.11(a)(1). This produced an advisory Guidelines range of 41 to 51 months of imprisonment.

         At the sentencing hearing, the district court accepted the probation officer's Guidelines calculation without objection by Sanchez-Arvizu. Defense counsel stated that, under the November 2016 Guidelines, Sanchez-Arvizu's sentencing range would be 15 to 21 months. The probation officer arrived at an even lower calculation under the November 2016 Guidelines. The probation officer informed the district court that applying the new Guidelines would result in no enhancement and a sentencing range of 1 to 7 months of incarceration. The district court asked the probation officer whether this range reflected a conviction for indecency with a child, and the probation officer confirmed that it did.

         The Government requested a Guidelines sentence; defense counsel asked the district court to consider a "downward variance, " or in the alternative, a sentence at the low end of the Guidelines range. The district court ultimately chose to "stay within the advisory range." While noting that "a sentence of 51 months would be entirely appropriate, " the district court sentenced Sanchez-Arvizu at the low end of the Guidelines range because this was his first conviction for illegal reentry. The district court stated that it had "considered all of the [18 U.S.C. §] 3553(a) factors" and sentenced Sanchez-Arvizu to 42 months in prison followed by a 3-year term of supervised release. Sanchez-Arvizu timely appealed.

         II

         Because Sanchez-Arvizu did not object to his sentence in the district court, we review for plain error. See United States v. Carlile, 884 F.3d 554, 556 (5th Cir. 2018); Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). To show plain error, Sanchez-Arvizu must show: (1) an error or defect not affirmatively waived; (2) that is "clear or obvious, rather than subject to reasonable dispute"; and (3) that affected his substantial rights. United States v. Prieto, 801 F.3d 547, 549-50 (5th Cir. 2015) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If these three conditions are satisfied, we may exercise discretion to remedy the error if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Puckett, 556 U.S. at 135 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

         III

         Under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015), a defendant receives a 16-level enhancement if, before his previous deportation, he was convicted of a felony that is a "crime of violence." The 2015 definition of a crime of violence includes "sexual abuse of a minor." U.S.S.G. § 2L1.2(b)(1), cmt. n.1(B)(iii) (2015). While this appeal was pending, the Supreme Court in Esquivel-Quintana v. Sessions held that "in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of 'sexual abuse of a minor' . . . requires the age of the victim to be less than 16." 137 S.Ct. 1562, 1572-73 (2017). The statute under which Sanchez-Arvizu was convicted for indecency with a child makes it a felony to engage in sexual contact with a child younger than 17 years of age. See Tex. Penal Code Ann. § 21.11(a)(1) (2013). The Texas statute at issue is therefore categorically broader than the generic federal definition of "sexual abuse of a minor." See 137 S.Ct. at 1568. Thus, as the Government concedes in light of Esquivel-Quintana, the district court erred by deeming Sanchez-Arvizu's conviction for indecency with a child a crime of violence under § 2L1.2 of the Guidelines, and by applying the corresponding 16-level enhancement. Sanchez-Arvizu has therefore satisfied the first prong of plain error review.

         "In considering whether an error is 'clear or obvious' we look to the 'state of the law at the time of appeal, ' and we must decide whether controlling circuit or Supreme Court precedent has reached the issue in question, or whether the legal question would be subject to 'reasonable dispute.'" United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015) (quoting United States v. Segura, 747 F.3d 323, 330 (5th Cir. 2014)). As the Government concedes, the district court's error is now clear and obvious under Esquivel-Quintana, satisfying prong two.

         Turning to the third prong, "this court may correct a plain error only if it 'affected the appellant's substantial rights.'" United States v. Rivera, 784 F.3d 1012, 1018 (5th Cir. 2015) (quoting Puckett, 556 U.S. at 135). "A sentencing error affects a defendant's substantial rights if he can show a reasonable probability that, but for the district court's error, he would have received a lesser sentence." Id. (quoting United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010)). "When a defendant is sentenced under an incorrect Guidelines range-whether or not the defendant's ultimate sentence falls within the correct range-the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error." Molina-Martinez v. United States, 136 S.Ct. 1338, 1345 (2016). This is because ...


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