United States v. Jorge Zamora-Lopez

Case: 16-40404 Document: 00513982888 Page: 1 Date Filed: 05/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-40404 FILED
May 8, 2017
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JORGE ZAMORA-LOPEZ, also known as Jorge Barajas-Zamora, also known
as Jorge Lopez Barajas-Zamora, also known as Jorge Zamora-Barajas,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-757-1
Before STEWART, Chief Judge, HIGGINBOTHAM and COSTA, Circuit
Judges.
PER CURIAM:*
Jorge Zamora-Lopez pleaded guilty to unlawfully reentering the United
States following deportation in violation of 8 U.S.C. § 1326. Adopting the
recommendation of the United States Probation Office’s presentencing
investigation report, the district court applied the 16-level “crime of violence”
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-40404
sentencing enhancement under § 2L1.2 of the 2015 United States Sentencing
Guidelines. The enhancement was based on Zamora-Lopez’s pre-deportation
conviction for resisting an executive officer in violation of California Penal
Code § 69. With a base offense level of 8, plus the 16-level crime-of-violence
enhancement, minus a 3-level reduction for acceptance of responsibility,
Zamora-Lopez’s total offense level was 21. That level, coupled with a criminal
history category of III, resulted in a Guidelines range of 46–57 months’
imprisonment. The district court sentenced Zamora-Lopez to 48 months’
imprisonment. Absent the crime-of-violence enhancement, even assuming that
the same California conviction would have triggered an 8-level “aggravated
felony” or “drug trafficking” offense, the recommended Guidelines sentencing
range would have been 18–24 months.
Zamora-Lopez did not object at the time, but now argues that applying
the enhancement was plain error. There are “four requirements for reversing
a trial court based upon plain error review: (1) ‘there must be an error or
defect—some sort of [d]eviation from a legal rule—that has not been
intentionally relinquished or abandoned’; (2) ‘the legal error must be clear or
obvious, rather than subject to reasonable dispute’; (3) ‘the error must have
affected the appellant's substantial rights’; and (4) ‘if the above three prongs
are satisfied, the court of appeals has the discretion to remedy the error—
discretion which ought to be exercised only if the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” United States
v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc) (quoting Puckett
v. United States, 556 U.S. 129, 135 (2009)).
The government concedes clear and obvious error that affected Zamora-
Lopez’s substantial rights, but urges us not to exercise our discretion to correct
it. We accept that concession without passing on its legal correctness. We are
inclined to exercise our plain-error discretion here, where the concededly
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No. 16-40404
erroneous enhancement effectively doubled the applicable Guidelines
sentencing range. The judgment of the district court is VACATED, and the
case is REMANDED for resentencing.
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