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United States v. Armendariz-Perez

United States Court of Appeals, Tenth Circuit

November 22, 2013

ELIAS ARMENDARIZ-PEREZ, Defendant-Appellant.

(D.Ct. No. 1:12-CR-00112-RBJ-1) (D. Colo.)

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and PHILLIPS, Circuit Judge.


WADE BRORBY United States Circuit Judge

Appellant Elias Armendariz-Perez pled guilty to one count of being found in the United States after deportation following a felony conviction. He now appeals his forty-month sentence, contending the district court improperly characterized his prior Texas conviction for burglary of a habitation as a crime of violence for the purpose of applying a sixteen-level enhancement pursuant to United States Sentencing Guidelines ("Guidelines" or "U.S.S.G.") § 2L1.2. We exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and affirm.

I. Background

On February 28, 2012, immigration authorities discovered Mr. Armendariz-Perez illegally in the United States and arrested him in Colorado. On June 11, 2012, Mr. Armendariz-Perez pled guilty to illegal reentry after deportation subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). Prior to his guilty plea, Mr. Armendariz-Perez entered into a fast-track plea agreement with the government and filed a statement in advance of that plea. In the agreement, Mr. Armendariz-Perez stipulated he previously received a felony conviction in Texas for "burglary of a habitation" and seven years probation. In estimating the Guidelines computations and indicating some disagreement may arise as indicated, the parties stated: "[t]he following specific offense characteristics apply: There is a 12-level increase under § 2L1.2(b)(1)(A) because [Mr. Armendariz-Perez] was previously removed following a conviction for a felony that is a crime of violence." The parties further agreed the government would file a motion for a four-level downward departure based on the early disposition (or fast-track) Guidelines provisions under U.S.S.G. § 5K3.1 unless, following a presentence investigation, "it is determined [Mr. Armendariz-Perez] has a previous conviction for a 'crime of violence, '" as defined in U.S.S.G. § 2L1.2 application note 1, in which case it would only move for a two-level reduction. Under that definition, a "crime of violence" includes federal, state, or local "burglary of a dwelling, " see U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), and we define "dwelling" as including "any enclosed space that is used or intended for use as a human habitation." United States v. Rivera-Oros, 590 F.3d 1123, 1132 (10th Cir. 2009) (internal quotation marks omitted).[1] In addition, Mr. Armendariz-Perez agreed he could not "contest the government's determination" of whether his prior crime constituted a crime of violence for the purpose of moving for a downward departure under § 5K3.1. At the plea hearing, the district court accepted Mr. Armendariz-Perez's guilty plea, asking him multiple questions concerning his plea agreement, including whether he understood the charges against him and how the Guidelines may be applied in his case, to which he affirmatively answered.

Thereafter, a federal probation officer prepared a presentence report, recommending a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A) for a "crime of violence" based on Mr. Armendariz-Perez's prior Texas conviction for burglary of a habitation under Texas Penal Code § 30.02.[2] Specifically, the presentence report noted that on or about September 5, 1998, Mr. Armendariz-Perez intentionally or knowingly entered a habitation with the intent to commit theft without the effective consent of the owner, as indicated in the original indictment to which he pled guilty. The probation officer then calculated Mr. Armendariz-Perez's total offense level at 21 and his criminal history category at III, for a resulting advisory Guidelines range of forty-six to fifty-seven months in prison. Thereafter, as referenced in the agreement, the government filed for a two-level downward departure in his offense level, under U.S.S.G. § 5K3.1, for the purpose of reducing the Guidelines range to thirty-seven to forty-six months imprisonment. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).

Mr. Armendariz-Perez did not file objections to either the presentence report or the government's § 5K3.1 motion. At the sentencing hearing, his counsel stated Mr. Armendariz-Perez did not "have any objections or corrections to the presentence report" or any objection to the government's motion for a two-level departure, which the government pointed out was "based on the fact that the defendant's conviction for burglary constitutes a crime of violence." The district court granted the departure, resulting in an advisory Guidelines range of thirty-seven to forty-six months, and the government requested a sentence at the low end of the Guidelines range at thirty-seven months. While discussing the sentencing factors in 18 U.S.C. § 3553(a), the district court noted, in part, Mr. Armendariz-Perez "broke into a gentleman's house, the circumstances are unknown to the court, " and that "[h]e was convicted of burglary of a habitation which is considered by the probation office and the law to be a crime of violence." After considering the requisite sentencing factors, the district court sentenced Mr. Armendariz-Perez to forty months imprisonment. Mr. Armendariz-Perez did not make a contemporaneous objection to the district court's characterization of his prior conviction or the sentence it imposed.

II. Discussion

For the first time on appeal, Mr. Armendariz-Perez asserts his prior conviction for burglary of a habitation is not a "crime of violence" because a burglary committed under Texas Penal Code § 30.02 may include structures appurtenant to a residence or dwelling, which is broader than U.S.S.G. § 2L1.2(b)(1)(A)(ii) and its commentary, which require burglary of a dwelling in order to qualify as a crime of violence. See § 2L1.2(b)(1)(A)(ii) cmt. n. 1(B)(iii). Because he did not raise this argument before the district court, Mr. Armendariz-Perez contends our review is for plain error. In discussing plain error, he argues the district court committed an error in failing to conduct a categorical approach and determine the statute is ambiguous because it defines burglary as including both a dwelling and structures appurtenant to it. He argues it then should have applied a modified categorical approach by relying on certain judicial records to decide if the offense involved the burglary of a dwelling.[3] Because a possibility exists he only burglarized an appurtenant structure, Mr. Armendariz-Perez contends the district court committed an error that was plain by characterizing his prior offense as a crime of violence. In making this argument, Mr. Armendariz-Perez discusses the burglary statutes of several states, pointing out Texas is in the minority in defining "burglary" to include outbuildings, and further suggests our prior precedent requires a modified categorical approach.

In support of applying a modified categorical approach, Mr. Armendariz- Perez filed an unopposed motion to supplement the appellate record with judicial records from his prior conviction, which we granted. He filed such supplemental documents prior to the Supreme Court's issuance of Descamps, contending these documents will show that the state of Texas charged him with general burglary of a habitation without any further specification as to whether it involved burglary of a dwelling or an appurtenant structure. As a result, he argued, both the third and fourth prongs of our plain error review are met because he can show a reasonable probability of a different outcome absent the district court's plain error in treating his conviction as a crime of violence and a strong possibility the district court would have sentenced him at a lower Guidelines range without such an error.

Since Mr. Armendariz-Perez's supplemental motion, the Supreme Court, in Descamps, explained that the "modified categorical approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." 133 S.Ct. at 2283. However, it further explained the modified categorical approach does not apply if "state law defines burglary not alternatively, but only more broadly than the generic offense." Id. Based on such supplemental authority, Mr. Armendariz-Perez now argues the modified categorical approach does not apply, as the Texas statute at issue is not divisible by setting out one or more elements of the offense in the alternative, but is written more broadly, and, instead, only a categorical approach applies, under which he must prevail.

In countering Mr. Armendariz-Perez's claims, the government asserts he invited the error he now raises because he "urged the district court to find that his prior conviction qualifies as a crime of violence" in his plea agreement and further waived the issue by not objecting to the facts in the presentence report, including that he committed a crime of violence for burglary of a dwelling. Alternatively, it contends that if plain error analysis applies, his argument must fail because he now has the burden of proof to show his conviction was not a crime of violence. It suggests the documents he provided do not meet this burden, and therefore, he fails to establish a different outcome in the district court proceeding or the possibility of a lesser sentence.

We begin by explaining an "invited error" "prevents a party from inducing action by a court and later seeking reversal on the ground that the requested action was in error." United States v. Lopez-Medina, 596 F.3d 716, 733 n.10 (10th Cir. 2010) (internal quotation marks omitted). "Our prior cases make clear that waiver bars a defendant from appealing an invited error." United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007). "[W]aiver is the intentional relinquishment or abandonment of a known right" and is "accomplished by intent" rather than neglect.[4] Id. (internal quotation marks omitted). In addition, we have held that once a defendant's guilty plea is entered and accepted by the court, he is bound by the agreement, subject only to provisions regarding its withdrawal. See United States v. Novosel, 481 F.3d 1288, 1293 n.3 (10th Cir. 2007).

In this case, contrary to the government's contention, a fair reading of the plea agreement shows the parties merely estimated the Guidelines computations, and, in doing so, stated a twelve-level–not a sixteen-level–increase for a "crime of violence" applied.[5] While the parties now agree the reference to a twelve-level increase was mistaken, such an error prevents a conclusion Mr. Armendariz-Perez invited the sixteen-level enhancement error of which he now complains. In addition, while the parties indicated in the plea agreement that § 2L1.2(b)(1)(A)(ii) applied for "a crime of violence, " they also agreed the government would determine, at a later date, whether Mr. Armendariz-Perez committed a crime of violence for the purpose of moving for a downward departure under § 5K3.1. Thus, ambiguity exists as to whether Mr. Armendariz- Perez agreed in his plea agreement he committed a crime of violence for the purpose of any invited error analysis.

Nevertheless, even if he did not invite the error of which he now complains or, as the government contends, waive the issues raised for the first time on appeal, Mr. Armendariz-Perez cannot prevail under a plain error review. Under the plain error test, an appellate court may correct an error not raised at trial if (1) an error occurred; (2) that is "plain"; and (3) which affects substantial rights; and if these first three criteria are met, we may exercise our discretion to correct the error if it (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings. See Johnson v. United States, 520 U.S. 461, 466-67 (1997). A defendant has the burden of establishing all of these criteria and because they are conjunctive, we need not continue our analysis if we determine any one of them is not met. See United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir. 2004). We note that to constitute plain error, it must be an error which is clear or obvious under current or well-settled law. See United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012); United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003). Well-settled law means the Supreme Court or this court must have addressed the issue. See Edgar, 348 F.3d at 871.

In this case, even if we presume the district court erred in characterizing the prior conviction as a crime of violence, [6] the error was not plain. This is because the district court had no basis to believe Mr. Armendariz-Perez's prior crime did not involve burglary of a dwelling or a crime of violence due to his failure to dispute such characterization of his prior offense, either in the presentence report or at the sentencing hearing. See United States v. Zubia-Torres, 550 F.3d 1202, 1208-09 (10th Cir. 2008). Instead, Mr. Armendariz-Perez's failure to object would not have alerted the district court to any error, plain or otherwise, in its characterization or signal an obligation by it to apply a categorical approach to the statute or determine whether a modified categorical approach even applied for the purpose of considering any prior sentencing documents, which neither party deemed necessary for proffer. Indeed, while the district court did not have the benefit of the Supreme Court's analysis of Descamps at the time of sentencing, the fact that the elements of the Texas statute do not appear to be divisible establishes no error occurred in its failure to apply a modified categorical approach.[7] See 133 S.Ct. at 2282. For these reasons, we also cannot say the district court committed plain error in failing to sua sponte consider or apply either approach in assessing whether the prior conviction constituted a crime of violence. See United States v. Easter, 981 F.2d 1549, 1556-57 (10th Cir. 1992). Similarly, while Mr. Armendariz-Perez claims the statute, on its face, under a categorical review is too broad or ambiguous to show he actually burglarized a dwelling, no controlling authority exists in this circuit[8]or the Supreme Court on this issue. Rather, it appears the only court which has considered Texas Penal Code § 30.02 on categorical grounds is the Fifth Circuit, which has jurisdiction over federal crimes in Texas and determined, based on its examination of the statute alone, that the offense of "burglary of a habitation" under Texas Penal Code § 30.02 is the same as "burglary of a dwelling" for the purpose of applying U.S.S.G. § 2L1.2 for a "crime of violence." See United States v. Garcia-Mendez 420 F.3d 454, 456-57 (5th Cir. 2005). This position is contrary to Mr. Armendariz-Perez's argument, even though it does not have precedential authority in this circuit. In any event, no controlling law, or even law from another circuit dealing with a categorical review of the Texas statute, conclusively holds the district court erred in applying a sixteen-level enhancement for its characterization of his prior conviction as a crime of violence, leaving us to conclude the error, if any, was not plain. See Edgar, 348 F.3d at 871 (holding error is plain only if error is clear or obvious under current or well-settled law).

Having made these determinations, we need not elaborate further on Mr. Armendariz-Perez's arguments, [9] including conducting our own examination of the Texas statute or providing a further explanation of why a modified categorical analysis does not apply and no examination is needed of the prior conviction documentation submitted for the first time on appeal. Accordingly, we conclude the district court did not commit plain error in applying a sixteen-level enhancement for his prior conviction under Texas Penal Code § 30.02.

III. Conclusion

For the foregoing reasons, we AFFIRM Mr. Armendariz-Perez's sentence.

PHILLIPS, Circuit Judge, dissenting

The district court enhanced Armendariz's sentence by 16 offense levels after finding at the sentencing hearing that "[h]e was convicted of burglary of a habitation, which is considered by the probation office and the law to be a crime of violence."[1](ROA vol. 2, at 24 (emphasis added).) In doing so, the district court applied the categorical approach to determine that a Texas "burglary of a habitation" qualifies as a "burglary of a dwelling" (and hence a "crime of violence") under U.S.S.G. § 2L1.2(b)(1)(A)(ii), n.1(B)(iii). Because I believe that in opposing the enhancement Armendariz has met the four requirements of plain error, I would reverse and remand for resentencing.

1. Error

In determining that convictions for burglary of a habitation under Texas Penal Code § 30.02 categorically qualify as a burglary of a dwelling under § 2L1.2, the district court failed to consider United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012). There, this Court applied a modified categorical analysis to the definition of "habitation" as used in § 30.01(1)(A), (B). Id. at 673, 676. It divided "habitation" into two parts, reasoning that even if the second part (§ 30.01(B)) included non-dwellings "the modified categorical approach would permit the government to show that a defendant's prior conviction" was for a burglary under the first part (§ 30.01(1)(A)), which included only dwellings. Id. at 676. see also United States v. Porras-Rubi, 468 F.App'x 892, 898 (10th Cir. 2012) (unpublished) (also applying modified categorical approach to "habitation" under the same Texas burglary statute).

In my view, the district court erred by treating all burglaries of habitations under Texas Penal Code § 30.02 as "burglaries of dwellings" under U.S.S.G. § 2L1.2 n.1(B)(iii). The district court should have followed Ventura-Perez and divided "habitation" into its two constituent parts. Once it had done so, it could have compared each part to the definition of generic "dwelling" given by United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009).

In Rivera-Oros, this Court defined generic "dwelling" as "not limited to permanent and immovable structures or buildings, " but "[r]ather a 'dwelling' includes[2]any 'enclosed space that is used or intended for use as a human habitation.'"[3] Id. At 1131- 1132 (quoting Black's Law Dictionary 582 (9th ed. 2009)).[4] Because sheds, unattached garages, and other appurtenant structures are not intended for use as human habitations, and because not all other structures intended for human habitation are necessarily enclosed, [5] the second kind of Texas "habitations"—appurtenant structures—do not qualify as "dwellings" under U.S.S.G. § 2L1.2. See Texas Penal Code § 30.01(1)(B). In light of Ventura-Perez and Rivera-Oros, the district court needed the Shepard documents to see whether Armendariz was necessarily convicted of burglarizing a structure adapted for the overnight accommodation of persons. On appeal, Armendariz has provided us with the Shepard documents, and these documents do not show Armendariz's conviction was on such narrow grounds.[6] Texas case law tells us that convictions under Texas Penal Code § 30.02 can reach "non-dwellings, " including appurtenant structures not adapted for overnight accommodation.[7] Accordingly, because Armendariz was not necessarily convicted of burglarizing a generic "dwelling, " the district court should not have enhanced his sentence by 16 offense levels.[8]

Without discussing Ventura-Perez, the panel agrees with the district court that the categorical approach applies here. See Order and Judgment at 11 ("[T]he fact that the elements of the Texas statute do not appear to be divisible establishes no error occurred in its [the district court's] failure to apply a modified categorical approach."). In concluding this, the panel relies on Descamps v. United States, 133 S.Ct. 2276 (2013), to establish that the "habitation" element in the Texas burglary statute is indivisible.

I disagree with the panel's reading of Descamps. That case involves a far different question from the one presented here, and nothing in that case counsels or compels that this Court abandon Ventura-Perez. Rather than involving the instant question whether a statutory element (e.g., "habitation") was divisible, Descamps addressed an unrelated question whether the government could prove a missing generic burglary element in California's burglary statute (unlawful entry) by using Shepard documents to show that a defendant had in fact unlawfully entered the property he burglarized. 133 S.Ct. at 2281– 82. Although the Ninth Circuit allowed this expansion of the modified categorical approach, the Supreme Court did not. Id. at 2282. Instead, the Court reaffirmed that the controlling issue is whether a defendant necessarily was convicted of each generic element, not whether he "committed generic burglary, and so hypothetically could have been convicted under a law criminalizing that conduct." Id. at 2287–88 (emphasis in original).

Here, by contrast, the issue is whether the two kinds of structures from separate statutory phrases in Texas's definition of "habitation" are alternative elements. Nothing in Descamps disallows Ventura-Perez's use of the modified categorical approach to evaluate whether either of the statutory phrases for habitation matched generic "dwelling." In fact, responding to a hypothetical statute used by the Ninth Circuit to illustrate its view, the Court in Descamps said that a statute criminalizing assault with any of eight specified weapons would be divisible under a modified categorical approach to try to learn whether a defendant had necessarily been convicted of using a specific kind of weapon, e.g., a gun. Id. at 2290. The Court contrasted that with another hypothetical statute requiring "only an indeterminate 'weapon.'" In this second case, the Court said that "even if in many cases, the jury could have readily reached consensus on the weapon used, a later sentencing court cannot supply that missing judgment." Id.

The Texas statute defining "habitation" is more like Descamps's first hypothetical statute. It provides two separate kinds of habitation—(i) "structures adapted for the overnight accommodation of persons" and (ii) "structure[s] appurtenant or connected with the structure." Just as a prosecutor could charge the use of any one of the eight particular kinds of weapon under Descamps's first hypothetical statute, a Texas prosecutor could charge burglary of either kind of habitation found in the two separate statutory phrases.

However, even if the panel is correct that "habitation" is indivisible despite Ventura-Perez, Armendariz still should prevail. The indivisible "habitation" element would lump together all the structures from the two separate statutory phrases. This lumped "habitation" would then include the non-dwellings already mentioned—sheds, detached garages, and other outbuildings not intended for overnight accommodation, as well as any unenclosed structures intended for overnight accommodation. Because the lumped "habitation" under the categorical approach would be broader than generic "dwelling" as defined in Rivera-Oros, no convictions under Texas's "burglary of a habitation" statute could qualify as a "burglary of a dwelling" under U.S.S.G. § 2L1.2. See Descamps, 133 S.Ct. at 2283 ("[I]f the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts.").

2. Plain

When the district court categorically found that Armendariz's Texas burglary conviction qualified as a burglary of a dwelling under U.S.S.G. § 2L1.2, the court committed error that was plain. See United States v. Olano, 507 U.S. 725, 734 (1993). (treating "plain" as the equivalent of clear or obvious under current law). Here, the legal authorities showing the error were all readily available: (1) Ventura-Perez's treatment of "habitation" as divisible under the Texas burglary statute; (2) Rivera-Oros's definition of generic "dwelling"; and (3) the Texas cases finding that appurtenant structures such as sheds and detached garages qualify under its burglary statute as "habitations." Combining these three legal pieces, I conclude the district court committed plain error by treating all Texas burglary of habitation convictions as qualifying as burglary of dwelling convictions under U.S.S.G. § 2L1.2.

3. Substantial Prejudice

In United States v. Zubia-Torres, 550 F.3d 1202 (10th Cir. 2008), this Court reviewed for plain error a case similar to this one. As here, the district court enhanced a defendant's sentence by 16 offense levels under U.S.S.G. § 2L1.2, but this time after finding a prior conviction for "drug trafficking" under a Nevada statute. Id. at 1204. Because the defendant had failed to object to the enhancement in the district court, he had the burden on appeal to show substantial prejudice. Id. at 1209. The Court found that he had failed to meet his burden, saying that he could show that the district court's ruling disadvantaged him "only if the government were unable to prove, by appropriate judicial documents, that his prior conviction was for drug trafficking." Id. at 1210. He needed to "present evidence on appeal indicating that imposition of the enhancement was erroneous . . . ." Id. Along the same lines, the Court found that he could demonstrate that his substantial rights had been prejudiced by "show[ing] that the error 'affected the outcome of the district court proceedings.'" Id. at 1209 (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005)). This language strongly suggests that the defendant could have prevailed on appeal had he provided to the panel the necessary Shepard documents showing a likelihood that with these he would have obtained a different result in the district court.

But in United States v. Castellanos-Barba, 648 F.3d 1130 (10th Cir. 2011), another case involving an enhancement of 16 offense levels under U.S.S.G. § 2L1.2 for a "drug trafficking" conviction, this Court felt "bound by circuit precedent to conclude that the error did not affect substantial rights." Id. at 1133 (citing Zubia-Torres, 550 F.3d at 1209). It read Zubia-Torres as requiring a "defendant arguing plain error in the application of § 2L1.2 to make a showing before this court that his earlier conviction did not, in fact, involve drug trafficking conduct." Id. (emphasis added). The Court believed that Zubia-Torres required a "showing that his conviction was for transportation for personal use rather than drug trafficking conduct . . . ." 648 F.3d at 1133. It not only switched the burden on appeal, it changed what needed proved.

Presumably, the Court felt bound by this sentence from Zubia-Torres: "Even on appeal, the defendant offers no evidence that his conviction was for mere possession rather than sale." But the very next sentence clarifies that the standard on appeal is not whether a defendant can prove his actual conduct would not have met the generic definition but instead the standard is whether the Shepard documents would have changed the outcome in the district court: "We therefore have no way to know whether the enhancement properly applied." Zubia-Torres, 550 F.3d at 1209 (emphasis added). For these reasons, I believe that Castellanos-Barba misread Zubia-Torres.

In Olano, while addressing the substantial-prejudice prong, the Supreme Court focused on whether the error in the district court mattered. 507 U.S. at 734. The Court said that a defendant on appeal arguing plain error must show prejudice. Id. To meet this burden of persuasion, the Court said that a defendant must show that the error "affected the outcome of the district court proceedings." Id. (citations omitted). Nothing in Zubia-Torres suggested any intent to depart from Olano's plain-error framework. In fact, as noted above, in determining whether a defendant had shown prejudice, Zubia-Torres repeatedly focused on whether the error would have affected the outcome in the district court. 550 F.3d at 1209–10. In Zubia-Torres, the Court could not answer that question since it had no Shepard documents by which to determine whether the "imposition of the enhancement was erroneous . . . ." Id. at 1210. Here, we do have the necessary Shepard documents, and they show that they would have affected Armendariz's sentencing calculation.

4. Fairness, Integrity, or Public Reputation of Judicial Proceedings

Believing that Armendariz has met the first three prongs of plain error review, I would favor exercising discretion to correct the error because "it seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Zubia-Torres, 550 F.3d at 1208. Here, had the district court not treated Armendariz's Texas burglary conviction as a burglary of a dwelling (and hence as a "crime of violence"), he would have received just a four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(D). In addition, under the plea agreement, had the probation office found no crime of violence the district court would have been fully justified in awarding Armendariz a full four-level reduction under the fast-track guideline, U.S.S.G. § 5K3.1. Accordingly, rather than being sentenced at a total offense level of 19, he may well have been sentenced at a total offense level of 6 and a criminal history category of III. Accordingly, his advisory range may have fallen from 37–46 months to 2–8 months. In cases with less severe disparities, this Court has exercised its discretion to correct the error. See United States v. Cordery, 656 F.3d 1103, 1108 (10th Cir. 2011) (using its discretion under the fourth prong of plain error analysis when the bottom of the advisory range mistakenly used was 56 months and should have been 51 months).

For all these reasons, I respectfully dissent.

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