NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 19-3239 _______________ UNITED STATES OF AMERICA v. FRANCISCO NICHOLAS BRITO a/k/a Nicholas Brito a/k/a Jose, Appellant _______________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:18-cr-00557-001) District Judge: Honorable Claire C. Cecchi _______________ Submitted Under Third Circuit L.A.R. 34.1(a) on July 8, 2020 Before: McKEE, BIBAS, and FUENTES, Circuit Judges (Filed: September 21, 2020 ) _______________ Alison Brill [ARGUED] Office of Federal Public Defender 22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, NJ 08609 Lisa M. Mack Office of Federal Public Defender 1002 Broad Street Newark, NJ 07102 Counsel for Appellant Mark E. Coyne John F. Romano [ARGUED] Office of the United States Attorney 970 Broad Street Room 700 Newark, NJ 07102 Counsel for Appellee _______________ OPINION * _______________ BIBAS, Circuit Judge. Every defendant deserves a fair shake at sentencing. Francisco Brito, a felon, claims that he changed his ways once his daughter was born. But in restating his criminal history, the sentencing judge erroneously implied that his criminal career continued after she was born. That honest factual mistake undermined his argument for leniency. His lawyer did not object, but the error was plain. So we will vacate and remand for resentencing. * This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. 2 I. BACKGROUND This appeal turns on the interplay between Brito’s criminal history and the District Court’s comments at sentencing. Understanding both is crucial. A. Brito’s actual criminal history Francisco Brito has a checkered past. He admits as much. For many years he stayed in this country illegally, dealing heroin. Those dealings form the backbone of his criminal record and deportation history. 1. Brito’s first removal from the United States. Brito was first arrested in March 2001. He delivered 685 grams of heroin to an undercover officer, with predictable results. But though it was his first arrest, it was not his first drug deal; he later admitted that he had been selling heroin for more than a year. He pleaded guilty and was sentenced to forty-six months’ imprisonment. Upon release, an immigration judge ordered him removed to the Dominican Republic; he was sent back there in 2004. 2. Brito’s second removal. Brito soon returned to the United States illegally. In 2007, state and federal officials arrested him for packaging several kilos of heroin and importing many more. Both authorities charged him based on the same underlying conduct. In New Jersey, Brito pleaded guilty to two state offenses and was sentenced to about five years’ imprisonment. In the Southern District of New York, he pleaded guilty to three federal drug crimes along with illegal reentry. After he served his time, Brito was removed to the Dominican Republic in 2013. That raised his lifetime deportation total to two. 3 3. Brito’s most recent illegal reentry. Sometime after his second removal in 2013, Brito again returned to the United ...
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