Case: 18-40768 Document: 00514990394 Page: 1 Date Filed: 06/10/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-40768 United States Court of Appeals Fifth Circuit FILED June 10, 2019 UNITED STATES OF AMERICA, Lyle W. Cayce Plaintiff - Appellee Clerk v. ELEAZAR PEREZ-MATEO, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas Before HIGGINSON and WILLETT, Circuit Judges, and BROWN, District Judge.* STEPHEN A. HIGGINSON, Circuit Judge: In May 2018, Eleazar Perez-Mateo pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. Using the 2016 Guidelines Manual, the Probation Office’s Pre-Sentence Report (“PSR”) calculated for Perez-Mateo a total offense level of 13 and a criminal history category of IV, resulting in a Guidelines imprisonment range of 24 to 30 months. Relevant to this appeal, in calculating Perez-Mateo’s criminal history score, the PSR assessed two points * District Judge of the Northern District of Mississippi, sitting by designation. Case: 18-40768 Document: 00514990394 Page: 2 Date Filed: 06/10/2019 No. 18-40768 for a February 2007 misdemeanor conviction for aiding and abetting illegal entry. Neither the government nor Perez-Mateo objected to the PSR. Further, at the August 2018 sentencing hearing, Perez-Mateo verbally confirmed that “everything was correct” in the PSR. The district court accordingly adopted the PSR’s offense level and criminal history calculations. Before pronouncing a sentence, the district court noted that Perez-Mateo had “consistently been involved in criminal conduct for a good amount of the time that [he had] been here in the United States.” Yet, the district court recognized that Perez-Mateo had multiple minor children living in the United States, including a fourteen- year-old suffering from cancer. Having laid out these considerations, the district court explained that it would decline to vary upwards: “So I’ll leave you here, but I’m going to sentence you at the high end.” The district court sentenced Perez-Mateo to 30 months of imprisonment and three years of supervised release. Perez-Mateo timely filed a notice of appeal. On appeal, Perez-Mateo argues for the first time that his February 2007 conviction should not have counted towards his criminal history score. Without the February 2007 conviction, his criminal history category would have been III, not IV, resulting in a Guidelines imprisonment range of 18 to 24 months instead of 24 to 30 months. Perez-Mateo contends that this was a plain error affecting his substantial rights, see FED. R. CRIM. PRO. 52(b), and that this court should exercise its discretion to correct the error. I. The federal Sentencing Guidelines are “complex,” so “there will be instances when a district court’s sentencing of a defendant within the framework of an incorrect Guidelines range goes unnoticed. In that circumstance, because the defendant failed to object to the miscalculation, 2 Case: 18-40768 Document: 00514990394 Page: 3 Date Filed: 06/10/2019 No. 18-40768 appellate review of the error is governed by Federal Rule of Criminal Procedure 52(b).” Molina-Martinez v. United States, 136 S. Ct. 1338, 1342–43 (2016). Under Rule 52(b), ...
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