from the United States District Court for the Southern
District of Texas
JOLLY, DENNIS, and ELROD, Circuit Judges.
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
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
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.
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.
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)).
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.
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.
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 ...