United States v. Francisco Garcia-Vazquez, 682 F. App'x 355

Defendant Francisco Garcia-Vazquez pleaded guilty to illegal reentry and violated a condition of supervised release; district court imposed a cumulative 50-month sentence (46 months for reentry + 4 months for revocation).
Defense counsel at sentencing made vague remarks about a proposed amendment to the Sentencing Guidelines that might benefit Garcia-Vazquez but did not explicitly request a downward variance based on that amendment.
The district court stated it must sentence under the Guidelines as they exist at sentencing and declined to apply any proposed amendment; Garcia-Vazquez did not contemporaneously object to that ruling.
The presentence report and the district court indicated the court believed it was required to impose the sentence for the supervised-release revocation consecutively to the reentry sentence, despite defense requesting concurrent sentences and the court’s apparent misunderstanding of the law.
On appeal Garcia-Vazquez argued: (1) the district court erred by refusing to consider a downward variance tied to a proposed Guidelines amendment; and (2) the court wrongly believed it lacked authority to impose concurrent sentences.
The Fifth Circuit reviewed both claims for plain error because the defendant failed to preserve either objection at sentencing, and it vacated and remanded for resentencing based on the consecutive-sentencing error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by refusing to grant a downward variance to account for a proposed amendment to the Sentencing Guidelines	Gov: The court correctly sentenced under the Guidelines in effect at sentencing and no variance was requested	Garcia-Vazquez: Counsel’s statements requested a downward variance to obtain benefit of proposed amendment	No error; defendant did not request a variance and court correctly declined to apply proposed amendment at sentencing
Whether the district court erred in believing it lacked authority to run the revocation sentence concurrently	Gov: Consecutive sentence was imposed; no timely objection was made below	Garcia-Vazquez: Court mistakenly thought it was required to impose consecutive sentences and thus erred	Clear error: the court has discretion to impose concurrent sentences; plain error affected substantial rights; vacated and remanded for resentencing
Whether plain-error review warrants relief given preservation failure	Gov: Defendant forfeited objections; plain-error standard applies and should not be met	Garcia-Vazquez: Error was clear, affected substantial rights, and warrants correction	Plain-error standard met under Molina-Martinez framework; remand warranted

Whitelaw v. United States, 580 F.3d 256 (5th Cir.) (plain-error and sentencing-preservation principles)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard and relief discretion)
Rodarte-Vasquez v. United States, 488 F.3d 316 (5th Cir.) (applying Guidelines as they exist at sentencing absent ex post facto concerns)
Mondragon-Santiago v. United States, 564 F.3d 357 (5th Cir.) (preservation requirement to allow district court correction)
Garcia-Perez v. United States, 779 F.3d 278 (5th Cir.) (what preserves an argument on appeal)
Ocana v. United States, 204 F.3d 585 (5th Cir.) (preservation and opportunity to address below)
Huff v. United States, 370 F.3d 454 (5th Cir.) (district court’s discretion to impose concurrent vs. consecutive sentences)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (assessing prejudice under plain-error review for sentencing guidelines errors)