United States v. Villegas

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED MAY 18, 2005

March 17, 2005

IN THE UNITED STATES COURT OF APPEALS

Charles R. Fulbruge III

FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 03-21220

_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FORTINO SAUCEDO VILLEGAS

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Houston

_________________________________________________________________

Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit

Judges.

PER CURIAM:

Defendant-Appellant Fortino Saucedo Villegas pled guilty and

was sentenced in the district court before the United States

Supreme Court’s recent decision in United States v. Booker, 125

S. Ct. 738 (2005). This appeal requires us to re-examine the

proper standard of review to employ in our resolution of a claim

that the district court improperly applied the Sentencing

Guidelines in calculating the sentencing range under the

previously mandatory, now advisory, sentencing guideline regime.

We re-examine our standards in order to determine the possible

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effect, if any, of Booker on our previously announced standards

in reviewing such claims.

Villegas pled guilty to being an alien in unlawful

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5)

and 924(a)(2). At sentencing, the district court imposed a four-

level sentence enhancement under UNITED STATES SENTENCING GUIDELINES

§ 2K2.1(b)(5) (2003) because it found by a preponderance of the

evidence that Villegas possessed a firearm in connection with his

use of fraudulent immigration documents. Villegas now appeals

the sentence enhancement. We VACATE Villegas’s sentence and

REMAND for resentencing.

I. BACKGROUND

A. Factual Background

On April 26, 2003, Fortino Saucedo Villegas, a Mexican

national unlawfully present in the United States, attended a gun

show at the Pasadena Convention Center in Pasadena, Texas. At

the show, Villegas approached Roland Kulish, who was operating a

booth at the show, and he expressed an interest in purchasing a

Colt semi-automatic pistol. Kulish informed Villegas that he did

not have any at the show but that he did have some at his store

and would bring one to the next gun show, scheduled for the

following weekend. The next week, Kulish returned to the gun

show and brought the firearm Villegas had requested. Villegas

also returned to the gun show and sought out Kulish to purchase

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the firearm. According to Kulish and his wife, Villegas

submitted three forms of identification: (1) a Texas driver’s

license, no. 19476405; (2) a Texas identification card, no.

12088537; and (3) a resident alien card, no. 12088537. On the

ATF form 4473, Villegas stated that he was a resident alien. In

response to line eleven, which asks for an “INS-issued alien

number or admission number,” Villegas listed 12088537. The words

“pictured Texas resident I.D. card” were written directly above

this response. Kulish sold the handgun to Villegas on May 3,

2003.

On June 5, 2003, the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (“ATF”) received information from the National

Instant Check System (“NICS”) about Villegas’s firearm purchase.

A check with the Bureau of Immigration and Customs Enforcement

revealed Villegas’s criminal immigration history.1 Based on this

information, the ATF obtained a search warrant for the residence

that Villegas had listed on his ATF forms.

On June 26, 2003, ATF agents executed the search warrant.

When the agents arrived, Villegas was asleep in his bedroom. The

agents found several firearms, ammunition, and a resident alien

card suspected to be counterfeit. A search of Villegas’s

automobile revealed receipts for an AK-47 and the Colt handgun he

had purchased from Kulish. The agents placed Villegas under

1

In June 1999, he was allowed to depart the United

States voluntarily in lieu of deportation after being found

illegally present in the United States.

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arrest and advised him of his constitutional rights. He waived

his right to remain silent and admitted that he was a Mexican

citizen illegally present in the United States. He also

acknowledged that the gun on the headboard belonged to him and

claimed he kept it for protection. Further, he admitted to

purchasing the Colt handgun from Kulish. He stated that he had

taken it to a gunsmith to have the finish changed from black to

chrome.

B. Procedural Background

On July 24, 2003, a grand jury indicted Villegas for “being

an alien illegally and unlawfully in the United States, knowingly

and unlawfully possess[ing] in and affecting interstate or

foreign commerce, one or more firearms . . . [i]n violation of

Title 18, United States Code, Sections 922(g)(5) and 924(a)(2).”

On September 8, 2003, Villegas pled guilty to this charge. In

the pre-sentence investigation report (“PSR”), the probation

officer recommended that Villegas receive a four-level sentence

enhancement pursuant to UNITED STATES SENTENCING GUIDELINES (“U.S.S.G.”

or the “Guidelines”) § 2K2.1(b)(5) for using or possessing a

firearm in connection with another felony offense. The probation

officer stated that “[t]he defendant falsified an ATF Form 4473

and possessed a counterfeit resident alien card for

identification in order to illegally obtain possession of the

Colt .38 caliber pistol . . . .” The United States Code makes it

a felony to create or possess fraudulent immigration documents.

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18 U.S.C. § 1546. Thus, the probation officer reasoned, Villegas

used a firearm in connection with another felony.

Prior to sentencing, Villegas filed written objections to

the PSR, arguing that he did not in fact present Kulish with a

counterfeit resident alien card. Villegas’s factual assertions

notwithstanding, the district court found that it was more likely

than not that Villegas used a counterfeit resident alien card to

obtain the Colt handgun. Thus, the district court accepted the

PSR’s recommendation of the four-level enhancement. The district

court sentenced Villegas to twenty-one months imprisonment.

Villegas now appeals, arguing that: (1) the district court erred

as a matter of law in applying a four-level enhancement for his

use of a firearm in connection with a felony; and (2) his Sixth

Amendment rights were violated because the government did not

bear the burden of proving beyond a reasonable doubt that he used

a counterfeit resident alien card.

II. STANDARD OF REVIEW

Villegas did not raise in the district court either his

legal objection to the imposition of the four-level enhancement

or his Sixth Amendment claim. Because of the lack of objections

below, this court’s review is for plain error. See, e.g., United

States v. Aderholdt, 87 F.3d 740, 743 (5th Cir. 1996); cf.

Booker, 125 S. Ct. at 769 (instructing appellate courts to apply

ordinary prudential doctrines such as plain-error review). This

court finds plain error when: (1) there was an error; (2) the

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error was clear and obvious; and (3) the error affected the

defendant’s substantial rights. United States v. Olano, 507 U.S.

725, 732-37 (1993); United States v. Mares, 2005 WL 503715, at *8

(5th Cir. Mar. 4, 2005). “If all three conditions are met an

appellate court may then exercise its discretion to notice a

forfeited error but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial

proceedings.” Mares, 2005 WL 503715, at *8 (quoting United

States v. Cotton, 535 U.S. 625, 631 (2002)).

In resolving Villegas’s claim that the district court

misapplied § 2K2.1(b)(5) of the Guidelines to enhance his

sentence, we must first address the possible effect of Booker on

our standard of review. It is beyond question that before

Booker, this court would have reviewed the district court’s

interpretation and application of the Guidelines de novo. E.g.,

United States v. Martinez-Mata, 393 F.3d 625, 627 (5th Cir.

2004); United States v. Deavours, 219 F.3d 400, 402 (5th Cir.

2000); United States v. Upton, 91 F.3d 677, 687 (5th Cir. 1996);

United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993).

The initial question presented here is whether this standard was

somehow changed by Booker’s excision of § 3742(e), which had

statutorily set forth the standards for reviewing sentencing

decisions, and its declaration that the remaining provisions of

the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq.,

imply a standard of unreasonableness. We conclude that when a

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district court has imposed a sentence under the Guidelines, this

court continues after Booker to review the district court’s

interpretation and application of the Guidelines de novo. We do

not speak in this opinion, however, to the situation in which a

district court elects to exercise its post-Booker discretion to

impose a non-Guidelines sentence.

The Supreme Court in Booker instructed that although the

Guidelines are now advisory rather than mandatory, § 3553(a) of

Title 18 still requires the district courts to consider the

Guidelines when determining a defendant’s sentence. See Booker,

125 S. Ct. at 764-65, 767; Mares, 2005 WL 503715, at *6-7; see

also 18 U.S.C.A. § 3553(a)(4) (West Supp. 2004).2 A number of

2

Section 3553 provides:

(a) Factors to be considered in imposing a

sentence.--The court shall impose a sentence

sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph

(2) of this subsection. The court, in determining

the particular sentence to be imposed, shall

consider-- . . .

(4) the kinds of sentence and the sentencing

range established for--

(A) the applicable category of offense

committed by the applicable category of

defendant as set forth in the

guidelines--

(i) issued by the Sentencing Commission

pursuant to section 994(a)(1) of

title 28, United States Code,

subject to any amendments made to

such guidelines by act of Congress

(regardless of whether such

amendments have yet to be

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other circuits have determined that the requirement that district

courts still consider the Guidelines means that Booker did not

alter the standard for reviewing a district court’s

interpretation and application of the Guidelines. See United

States v. Doe, 2005 WL 428916, at *2 & n.5 (10th Cir. Feb. 24,

2005); United States v. Hazelwood, 2005 WL 415681, at *1, *7 (6th

Cir. Feb. 23, 2005); see also United States v. Hughes, 2005 U.S.

App. LEXIS 4331, *10-11, 40-42 (4th Cir. Mar. 16, 2005) (on panel

reh’g) (holding that district courts post-Booker must still

correctly calculate the sentencing range under the Guidelines;

reviewing district court’s application of the Guidelines de

novo). In Doe, the district court calculated the Guidelines

range but decided to depart upwardly. The Tenth Circuit

determined that the district court had erred as a matter of law

in upwardly departing because it did not fully take into account

the defendant’s cooperation with the government when making its

sentencing decision. Doe, 2005 WL 428916, at *2. In setting

forth the standard of review, the Tenth Circuit noted: “When

reviewing a district court’s application of the Sentencing

Guidelines, we review legal questions de novo . . . .” Id.

(emphasis omitted). By way of a footnote, the court then stated:

incorporated by the Sentencing

Commission into amendments issued

under section 994(p) of title

28) . . . .

18 U.S.C.A. § 3553 (Supp. 2004).

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During the pendency of this appeal the Supreme Court

decided United States v. Booker which rendered the

Sentencing Guidelines advisory only and replaced the

prior standard of appellate review with review for

unreasonableness. Although the Guidelines are now

advisory, district courts must still “consult the

Guidelines and take them into account when sentencing.”

Thus, appellate review continues to encompass review of

the district court’s interpretation and application of

the Guidelines. Because we conclude that the district

court erred as a matter of law under 18 U.S.C.

§§ 3553(a) and 3661, we need not address any further

impact of Booker on appellate review.

Id. at *2 n.5 (internal citations omitted). Similarly, in

Hazelwood, 2005 WL 415681, at *1, the Sixth Circuit stated that

“[w]hen reviewing sentencing decisions, we review the district

court’s . . . conclusions of law de novo.” The appellate court

reasoned that Booker did not affect its review because it left

intact the requirement that district courts consult the

Guidelines. Id. at *7. The court then found that the district

court had erred as a matter of law by imposing a two-level

enhancement under the Guidelines for threatening death, and it

vacated and remanded for resentencing.3 Id. at *7-8.

This court recently reached a similar conclusion regarding

Booker’s effect on the standard of review in an unpublished

opinion, United States v. Davis, 2005 U.S. App. LEXIS 3770, *23-

24 & n.41 (5th Cir. Mar. 7, 2005) (unpublished). In that case,

3

It is worth noting that both Doe and Hazelwood involved

preserved error because the defendant objected below. Although

Doe does not address the issue, Hazelwood reviewed the error for

harmlessness as instructed by the Booker Court. Conversely, we

review Villegas’s sentence for plain error because he did not

object below.

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the district court sentenced the defendant as a career criminal

under § 4B1.1 of the Guidelines, which “classifies a defendant as

a career offender if the offense is a crime of violence or

controlled substance offense and the defendant has at least two

previous felony convictions for crimes of violence or controlled

substance offenses.” Davis, 2005 U.S. App. LEXIS 3770, at *23.

The defendant claimed that the district court erred in applying

the Guidelines because his two prior felonies were related and

therefore should have been considered only a single offense under

the Guidelines. This court agreed that the Guidelines “instruct

a sentencing judge to count as a single prior felony conviction

all those that are ‘related’ to one another.” Id. We stated

that the question of relatedness continues to be reviewed de novo

after Booker, noting that although the Supreme Court “determined

that the courts of appeals review sentencing decisions for

unreasonableness[,] [t]hat determination does not appear to

disturb this circuit’s standard of review for determining whether

two prior convictions are related.” Id. at *24 & n.41 (internal

citations omitted). Reviewing the relatedness question de novo,

the court found that the defendant’s prior offenses were not

related under § 4B1.1 of the Guidelines. Id. at *27. Therefore,

this court found that the district court did not err in applying

the Guidelines, and we affirmed the sentence imposed by the

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district court.4 Id.

The remedial opinion in Booker does not foreclose or

otherwise caution against this approach. It is true that the

Court excised § 3742(e), which statutorily set forth the

standards of review, and stated that the remaining statute

implied a reasonableness standard for reviewing sentences.

Booker, 125 S. Ct. at 765-66. It is also true that we must apply

both Booker’s constitutional and remedial holdings to all cases

pending on direct review. Id. at 769. Even so, nothing suggests

that Booker injected a reasonableness standard into the question

whether the district court properly interpreted and applied the

Guidelines or that an appellate court no longer reviews a

district court’s interpretation and application of the Guidelines

de novo.

Booker left standing all sections of the Sentencing Reform

Act other than §§ 3553(b)(1)5 and 3742(e).6 Booker, 125 S. Ct.

4

This court took a similar approach in United States v.

Montgomery, 2005 WL 469607 (5th Cir. Mar. 1, 2005). In

Montgomery, the court reviewed de novo the district court’s

application of a statutory minimum provision, 18 U.S.C. § 924(e),

as implemented by U.S.S.G. § 4B1.4. Id. at *2. The court found

that the district court erred as a matter of law in finding that

a prior conviction qualified as “a crime of violence.” Id. at

*2-5. On that ground, the court vacated the defendant’s

sentence, stating that it therefore need not address the impact

of Booker on the defendant’s alternative argument that the

sentence enhancement violated his Sixth Amendment rights. Id. at

*5.

5

Section 3553(b)(1), which made the Guidelines

mandatory, provided:

(b) Application of guidelines in imposing a sentence.--

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(1) In general.--Except as provided in paragraph

(2), the court shall impose a sentence of the

kind, and within the range, referred to in

subsection (a)(4) unless the court finds that

there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not

adequately taken into consideration by the

Sentencing Commission in formulating the

guidelines that should result in a sentence

different from that described. In determining

whether a circumstance was adequately taken into

consideration, the court shall consider only the

sentencing guidelines, policy statements, and

official commentary of the Sentencing Commission.

In the absence of an applicable sentencing

guideline, the court shall impose an appropriate

sentence, having due regard for the purposes set

forth in subsection (a)(2). In the absence of an

applicable sentencing guideline in the case of an

offense other than a petty offense, the court

shall also have due regard for the relationship of

the sentence imposed to sentences prescribed by

guidelines applicable to similar offenses and

offenders, and to the applicable policy statements

of the Sentencing Commission.

18 U.S.C.A. § 3553(b)(1) (West Supp. 2004).

6

Section 3742(e) provided:

(e) Consideration.--Upon review of the record, the

court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect

application of the sentencing guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the

written statement of reasons required by

section 3553(c);

(B) the sentence departs from the applicable

guideline range based on a factor that--

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at 764. Thus, § 3742(a) still remains in force, providing that

“[a] defendant may file a notice of appeal in the district court

for review of an otherwise final sentence if the sentence . . .

was imposed as a result of an incorrect application of the

sentencing guidelines.” 18 U.S.C. § 3742(a)(2). Moreover,

§ 3742(f) still provides: “If the court of appeals determines

(i) does not advance the objectives set

forth in section 3553(a)(2); or

(ii) is not authorized under section

3553(b); or

(iii) is not justified by the facts of

the case; or

(C) the sentence departs to an unreasonable

degree from the applicable guidelines range,

having regard for the factors to be

considered in imposing a sentence, as set

forth in section 3553(a) of this title and

the reasons for the imposition of the

particular sentence, as stated by the

district court pursuant to the provisions of

section 3553(c); or

(4) was imposed for an offense for which there is no

applicable sentencing guideline and is plainly

unreasonable.

The court of appeals shall give due regard to the

opportunity of the district court to judge the

credibility of the witnesses, and shall accept the

findings of fact of the district court unless they are

clearly erroneous and, except with respect to

determinations under subsection (3)(A) or (3)(B), shall

give due deference to the district court's application

of the guidelines to the facts. With respect to

determinations under subsection (3)(A) or (3)(B), the

court of appeals shall review de novo the district

court’s application of the guidelines to the facts.

18 U.S.C.A. §3742(e) (West Supp. 2004).

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that . . . the sentence was imposed in violation of law or

imposed as a result of an incorrect application of the sentencing

guidelines, the court shall remand the case for further

sentencing proceedings with such instructions as the court

considers appropriate.” 18 U.S.C. § 3742(f)(1). The survival of

these provisions further counsels that we maintain our review of

the district court’s interpretation and application of the

Guidelines when it has imposed a sentence under the Guidelines.7

III. DISCUSSION

Villegas argues on appeal that the district court erred as a

matter of law when it enhanced his sentence under U.S.S.G.

§ 2K2.1(b)(5) for using or possessing a firearm in connection

7

This conclusion is informed in part by this court’s

pre-2003 practice of reviewing sentencing departures from the

range established by the Guidelines. Before the PROTECT Act of

2003, Pub. L. 108-21, 117 Stat. 650, amended § 3742(e) to provide

for a complete de novo review of all departures, this court

reviewed departures in two steps: first, we asked whether the

departure was proper under the Guidelines, which was reviewed de

novo; and second, we asked whether the degree of the departure

was reasonable, which was reviewed under an abuse of discretion

standard. United States v. Fierro, 38 F.3d 761, 775 n.7 (5th

Cir. 1994) (“We review the degree or reasonableness of a

departure for abuse of discretion. However, whether the ground

for departure is proper is a question of law reviewable de novo

because it involves an interpretation of the Sentencing

Guidelines.” (emphasis omitted)); United States v. Caldwell, 985

F.2d 763, 765 (5th Cir. 1993) (per curiam); see also United

States v. Rybicki, 96 F.3d 754, 757-58 (4th Cir. 1996) (“Because

a court’s classification of potential bases for departure is a

matter of guideline interpretation, we review such rulings de

novo in the context of our ultimate review for abuse of

discretion.”). Analogously, post-Booker, as part of its overall

review of the sentence, this court reviews a district court’s

interpretation and application of the Guidelines in the same

manner as we did pre-Booker.

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with another felony offense. Specifically, Villegas contends

that this enhancement provision does not apply to him because the

firearms that he possessed were not used to facilitate the other

felony offense at issue here (his use of a fraudulent immigration

document) and because the presence of the firearm did not make

the commission of the other felony inherently more dangerous.

Further, Villegas argues that he did not yet possess the firearm

at the time he used the fraudulent immigration document, so he

could not have used the firearm in connection with his use of

forged documents.

In reviewing Villegas’s claim for plain error, our first and

second steps are to determine whether the district court

committed an error and whether that error was plain. See Olano,

507 U.S. at 732-34; Mares, 2005 WL 503715, at *8. As explained

above, in making this determination, we review the district

court’s interpretation and application of the Guidelines de novo.

Section 2K2.1(b)(5) provides for a four-level sentence

enhancement “[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense . . . .”

U.S.S.G. § 2K2.1(b)(5) (2003). For the purposes of

§ 2K2.1(b)(5), a felony offense “means any offense (federal,

state, or local) punishable by imprisonment for a term exceeding

one year, whether or not a criminal charge was brought, or

conviction obtained.” Id. at cmt. n.7. Villegas’s use of

fraudulent immigration documents qualifies as a felony offense

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under this definition because it is punishable by imprisonment

for a term exceeding one year. See 18 U.S.C. § 1546. The

question, however, is whether Villegas possessed the firearm “in

connection with” his use of the fraudulent documents.

Although the Guidelines do not define the phrase “in

connection with” as it appears in § 2K2.1(b)(5), we must give

this language its ordinary and natural meaning. See United

States v. Condren, 18 F.3d 1190, 1196 (5th Cir. 1994). This

circuit’s precedent interpreting § 2K2.1(b)(5) supports

Villegas’s argument that § 2K2.1(b)(5) was meant to address

circumstances where the presence of a firearm facilitated, and

made inherently more dangerous, another crime. In United States

v. Armstead, 114 F.3d 504, 512 (5th Cir. 1997), this court noted

that § 2K2.1(b)(5) was added in 1991 out of concern for crimes of

violence and drug offenses and the use of firearms in connection

with those offenses. In Armstead, the defendants pled guilty to

the charge of stealing firearms from a licensed firearms dealer.

114 F.3d at 506. The district court enhanced their sentences for

using the firearms in connection with another felony (the

burglary of the store). Id. at 506-07. We held that the

enhancement was proper under § 2K2.1(b)(5): once the defendants

acquired possession of the firearms during the burglary, they

possessed the weapons in connection with the burglary because

they could have used the guns to facilitate the crime and they

created an increased concern for public safety. Id. at 511-12.

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However, in United States v. Fadipe, 43 F.3d 993 (5th Cir.

1995), the defendant was convicted of bank fraud and unlawful

possession of a firearm. The district court levied a four-level

sentence enhancement pursuant to § 2K2.1(b)(5) because at the

time he committed the fraud, he possessed a firearm in his

automobile. Id. at 994. On appeal, we reversed the imposition

of the enhancement because there was no evidence that the firearm

was used in connection with the bank fraud. Id. at 995. Even

though the defendant had the firearm in his car at the time he

was arrested, it was not reasonable to assume that the defendant

possessed the weapon to prevent others from stealing his

fraudulent bank checks. Id. We specifically noted that “[t]he

presence of a gun near instruments of bank fraud does not create

the same automatic increase in the danger of physical violence

that exists when drugs and guns are present together.” Id. at

994-95. Similarly, in United States v. Houston, 364 F.3d 243

(5th Cir. 2004), the defendant was arrested for unlawful

possession of a firearm. At the time of his arrest, he possessed

counterfeit government identification documents. Id. at 245. We

nevertheless held that “[t]he possession of a false government

instrument, like the bank fraud at issue in Fadipe, is not an

offense that inherently provokes the type of violent

confrontation compelling offenders to protect themselves with a

firearm.” Id. at 250.

Thus, our precedent indicates that § 2K2.1(b)(5) applies

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only when the defendant’s use or possession of a firearm may have

facilitated or made more dangerous the other felony offense. It

is clear that Villegas’s possession of a firearm did nothing to

facilitate his use of a fraudulent identification card or to make

it a more dangerous crime. This is particularly so considering

the chronology of events in this case: Villegas’s offense of

using false immigration documents occurred the day before he

actually acquired possession of the firearm. Hence, Villegas’s

possession of a firearm was not in connection with his use of a

counterfeit alien registration card for the purposes of

§ 2K2.1(b)(5), and the district court erred in imposing a

sentence resulting from its incorrect application of the

Guidelines. Moreover, because Fadipe and Houston clearly

establish that the sentence enhancement under § 2K2.1(b)(5) was

inappropriate in this instance, we also find that the district

court’s error was plain, in the sense that it was clear or

obvious. Thus, Villegas has satisfied the first two prongs of

the plain-error test.

The third step in the plain-error analysis requires us to

consider whether the district court’s error affected Villegas’s

substantial rights. See Olano, 507 U.S. at 734-35; Mares, 2005

WL 503715, at *8. At this point, it is important to keep in mind

the relevant error. The error in question here is the district

court’s misinterpretation and misapplication of the then-

mandatory Guidelines by finding that an enhancement was

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appropriate under § 2K2.1(b)(5). Thus, it is different than the

error in Booker (i.e., the Sixth Amendment error of enhancing a

sentence based on judge-found facts under the mandatory

Guidelines) and Fanfan (application of the mandatory Guidelines

absent Sixth Amendment error).8 For that reason, the question in

the third step of the plain-error test is not the same as it was

in Mares, 2005 WL 503715--i.e., it is not whether the defendant

can show a reasonable probability that the district court would

have imposed a different sentence had the Guidelines been

advisory instead of mandatory. Instead, the proper question here

is whether the defendant can show a reasonable probability that,

but for the district court’s misapplication of the Guidelines, he

would have received a lesser sentence. We find that Villegas has

satisfied this burden.

In the absence of the four-level enhancement, Villegas’s

sentencing range would have been reduced from between twenty-one

and twenty-seven months to between ten and sixteen months.

Because these two sentencing ranges do not overlap, the district

court’s error necessarily increased Villegas’s sentence and thus

affected his substantial rights. See, e.g., Aderholt, 87 F.3d at

744 (holding that the defendant’s substantial rights were

affected by the court’s erroneous application of the Guidelines

8

It is true that Villegas also alleges a Sixth Amendment

Booker error on the ground that the district court found facts to

enhance his sentence and imposed the sentence under the mandatory

Guidelines. However, we must first address the antecedent error

that the district court committed by misapplying the Guidelines.

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because a correct application of the Guidelines would have

resulted in the defendant receiving a lesser sentence). Villegas

has satisfied his burden under the plain-error test because he

has shown that the district court misapplied the Guidelines in

calculating the sentencing range, the court imposed a sentence

under the then-mandatory Guidelines based on that miscalculation,

and the sentence was higher than the correct range under the

Guidelines.9 Under these circumstances, there is at least a

reasonable probability that the district court would have imposed

a lesser sentence if it had properly applied the Guidelines.

Furthermore, because the district court’s error clearly affected

Villegas’s sentence, we also find that the error seriously

affected the fairness, integrity, or public reputation of

judicial proceedings. See, e.g., Aderholt, 87 F.3d at 744

(finding that sentencing calculation errors affected “the

fairness and integrity of this judicial proceeding”). Thus, we

conclude that the district court committed plain error when it

imposed a four-level sentence enhancement pursuant to U.S.S.G.

§ 2K2.1(b)(5). Accordingly, we must vacate his sentence and

remand for resentencing. See, e.g., United States v.

9

Moreover, the record contains nothing to suggest that

the district court would have imposed the twenty-one month

sentence had it not been required by the Guidelines, nor does it

include any explanation of why the court would have considered

such a sentence appropriate even if it were contrary to the

Guidelines.

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Antonakopoulos, 2005 WL 407365, at *9 (1st Cir. Feb. 22, 2005).10

Although the district court on remand is not bound by the

Guidelines, it must consider them, and in doing so, it ordinarily

is required to calculate the proper Guidelines range. See, e.g.,

Booker, 125 S. Ct. at 764-65, 767; Mares, 2005 WL 503715, at *7

(“This duty to ‘consider’ the Guidelines will ordinarily require

the sentencing judge to determine the applicable Guidelines range

even though the judge is not required to sentence within that

range.”); United States v. Shelton, No. 04-12602, 2005 WL 435120,

at *6 n.9 (11th Cir. 2005).

Because we have determined that the district court’s

misapplication of the Guidelines requires a remand in this case,

we need not consider Villegas’s argument that his Sixth Amendment

rights were violated.

IV. CONCLUSION

For the foregoing reasons we VACATE Villegas’s sentence and

10

In Antonakopoulos, the First Circuit stated:

[W]here in a pre-Booker world we would have remanded

for procedural or substantive error in the application

of the Guidelines, that would normally lead to a Booker

remand. Where, as in pre-Booker cases, we engage in

plain-error review and find it clear that the district

court has made a sentencing error under the Guidelines,

the correction of which ordinarily would have led to a

lower sentence in the pre-Booker era, there is a strong

argument for remand. This means that in some cases we

will continue to review pre-Booker type claims of

Guideline error where it is plausible that the error

committed affected the sentence.

2005 WL 407365, at *9 (internal citation and footnote omitted).

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REMAND for resentencing consistent with this opinion.

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