Case: 14-40068 Document: 00512891645 Page: 1 Date Filed: 01/06/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40068
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 6, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ALVARO MEDINA, also known as Alvaro Medina-Estrada,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-627-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Alvaro Medina appeals the 30-month sentence imposed on his guilty plea
conviction for illegal reentry. See 8 U.S.C. § 1326. We conclude that the district
court committed plain error by enhancing Medina’s base offense level by 12
levels under U.S.S.G. § 2L1.2(b)(1)(B) based on a conviction under Florida
statute § 893.13(1)(a). See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009). Because the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40068 Document: 00512891645 Page: 2 Date Filed: 01/06/2015
No. 14-40068
Florida law does not require that a defendant know of the illicit nature of the
substance involved in the offense, a conviction under that law may not serve
as a basis for enhancing a federal drug sentence. Sarmientos v. Holder, 742
F.3d 624, 627-31 (5th Cir. 2014); see U.S.S.G. § 2L1.2, comment. (n.1(B)(iv));
United States v. Teran-Salas, 767 F.3d 453, 457 n.1 (5th Cir. 2014).
Medina has a guidelines range of 21 to 27 months under § 2L1.2(b)(1)(C)
because he had a 2008 federal conviction for illegal reentry, which constituted
an aggravated felony conviction. United States v. Zamora, 519 F. App’x 251,
252 (5th Cir. 2013); see Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir.
2006). This is significantly lower than the guidelines range of 30 to 37 months
calculated by the district court. Thus, Medina’s substantial rights were
affected by the enhancement error, which also affected the fairness, integrity,
or public reputation of judicial proceedings. See Puckett, 556 U.S. at 135;
United States v. John, 597 F.3d 263, 285 & n.96 (5th Cir. 2010); United States
v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007).
We reject, however, Medina’s contention that the judgment must be
reformed to delete any citation of § 1326(b). Citation of § 1326(b) is proper
based on Medina’s 2008 illegal reentry conviction. See Zamora, 519 F. App’x
at 252; United States v. Ho, 311 F.3d 589, 602 n.12 (5th Cir. 2002).
We vacate the sentence and remand for resentencing consistent with this
opinion and without prejudice to Medina’s right to urge in the district court
any claim concerning the special alias and deportation convictions that the
district court imposed or may choose to re-impose.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED
FOR RESENTENCING.
2