United States v. Heredia ( 2023 )

Case: 21-50627 Document: 00516605947 Page: 1 Date Filed: 01/11/2023
United States Court of Appeals
for the Fifth Circuit
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United States Court of Appeals
Fifth Circuit
No. 21-50627
Summary Calendar FILED
____________ January 11, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jesse Anthony Heredia,
Defendant—Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-1075-1
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Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Jesse Anthony Heredia pled guilty to possession with the intent to
distribute 50 grams or more of a mixture or substance containing a detectable
amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B). Based upon the determination that he was a career offender
pursuant to U.S.S.G. § 4B1.1, the district court sentenced him to 188 months
of imprisonment, followed by five years of supervised release. On appeal,
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-50627
Heredia argues, and the Government concedes, that the district court erred
by sentencing him as a career offender.
Because Heredia did not object to the career offender enhancement in
the district court, we review only for plain error. See United States v. Huerra,
884 F.3d 511, 519 (5th Cir. 2018). To prevail, Heredia must show (1) an error
(2) that is clear or obvious, (3) that affects his substantial rights, and (4) that
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Blanco, 27 F.4th 375, 380 (5th Cir. 2022)
(quotation marks and citation omitted).
The Guidelines assign a higher base offense level for certain career
offenders who have “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” § 4B1.1(a); see also § 4B1.1(b).
In this case, the district court designated Heredia as a career offender based,
in part, on Heredia’s prior Texas conviction for delivery of cocaine, which
the court treated as a “controlled substance offense.” As the Government
concedes, though, that conviction does not qualify as a “controlled substance
offense” under this court’s precedent and thus does not support the
application of the career offender enhancement. See United States v.
Tanksley, 848 F.3d 347, 352 (5th Cir.), supplemented by 854 F.3d 284 (5th Cir.
2017); United States v. Hinkle, 832 F.3d 569, 574–77 (5th Cir. 2016). This
was an obvious error. See United States v. Zuniga, 860 F.3d 276, 286 (5th Cir.
2017).
The Government concedes that, without the career offender
enhancement, Heredia’s applicable guidelines range would have been 110 to
137 months of imprisonment. In contrast, the district court’s application of
the career offender enhancement resulted in a guidelines range of 188 to 235
months of imprisonment, and the district court sentenced Heredia to 188
months of imprisonment, at the bottom of that range. The district court said
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No. 21-50627
nothing to suggest that it would have imposed a 188-month sentence
regardless of the guidelines range. To the contrary, the district court
explicitly acknowledged that it was the career offender enhancement that was
“really hurting” Heredia at sentencing. Under these circumstances, the
career offender enhancement impacted Heredia’s substantial rights, as the
Government concedes. See Zuniga, 860 F.3d at 286. We further hold that
the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings, particularly considering the Government’s
concessions. See id.
We AFFIRM Heredia’s conviction, VACATE his sentence, and
REMAND to the district court for resentencing. 1
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1
Because we are vacating and remanding his entire sentence, we do not reach
Heredia’s argument concerning the dangerous weapon enhancement under U.S.S.G.
§ 2D1.1(b)(1). See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005). As for
Heredia’s request that we reassign the case to a different judge on remand, we deny that
request because we are not persuaded that the district court is “unable to exercise impartial
judgment” on resentencing. United States v. Williams, 400 F.3d 277, 283 (5th Cir. 2005).
3