Case Information

*1 Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM: ^[*]

David Rojas-Ibarra pleaded guilty to one count of illegally reentering the United States in violation of 8 U.S.C. § 1326. Relying on the U.S. Probation Office’s presentence investigation report, to which Rojas-Ibarra did not object, the district court determined that his total offense level was 21 and his criminal history category was III, leading to a guideline range of 46 to 57- months imprisonment. The district court sentenced him to 46 months of imprisonment.

Rojas-Ibarra appeals his sentence, arguing for the first time that the district court erred by imposing a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), which increases a defendant’s offense level if he has returned to the United States after a conviction for a felony “crime of violence.” In applying the enhancement, the district court relied on Rojas-Ibarra’s prior conviction for burglary of a habitation under Texas Penal Code § 30.02(a). The Government regrets that it overlooked an error it now perceives in its unopposed motion to remand, which identifies reversible error in the 16-level enhancement.

Because Rojas-Ibarra failed to preserve his challenge for appeal, we review only for plain error. See United States v. Juarez , 626 F.3d 246, 253-54 (5th Cir. 2010). To establish plain error, Rojas-Ibarra must show that a forfeited error is clear or obvious and affects his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he makes such a showing, we have discretion to correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id . (alteration omitted) (quoting United States v. Olano , 507 U.S. 725, 736 (1993)).

The parties agree that Rojas-Ibarra’s burglary offense does not qualify, under the modified categorical approach, ^[1] as a “burglary of a dwelling” to enhance his sentence because there is no evidence identifying the subsection of § 30.02(a) under which he was convicted. The parties also agree that the error affected Rojas-Ibarra’s substantial rights because, without the enhancement, the applicable guidelines range would have been 18 to 24 months—well below the 46 to 57-month range relied on by the district court.

We find that this error was obvious and that Rojas-Ibarra has shown that the error affected his substantial rights because there is a reasonable probability of a different outcome absent the error. See Molina-Martinez v. United States , 136 S. Ct. 1338, 1345-47 (2016). Further, because the appropriate applicable guidelines range recommends approximately half the term of imprisonment Rojas-Ibarra received, we exercise our discretion to correct the error. See United States v. Castaneda , 740 F.3d 169, 175 (5th Cir. 2013). Accordingly, we GRANT the Government’s motion, VACATE Rojas- Ibarra’s sentence, and REMAND the case to the district court for resentencing.

[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

[1] Under the circumstances, we do not address Rojas-Ibarra’s alternative argument that the Supreme Court’s recent holding in Mathis v. United States , 136 S. Ct. 2243 (2016), calls into question this court’s holding in United States v. Conde-Castaneda , 753 F.3d 172, 176 (5th Cir. 2014) (applying a modified categorical approach to determine whether a defendant’s conviction under § 30.02(a) qualifies as a crime of violence).