Summary Calendar UNITED STATES OF AMERICA v. Jose Devore-Zuniga, also known as Jose Devora-Zuniga

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 13, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50231
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE DEVORE-ZUNIGA,
also known as Jose Devora-Zuniga
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas, El Paso
USDC No. 3:04-CR-2173-ALL
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Devora-Zuniga pled guilty to one charge of illegal entry into the
United States. At sentencing, the district court calculated his Sentencing
Guideline range as 57 to 71 months and then selected a 50-month sentence.
Devora-Zuniga appeals that sentence. He argues that he should be re-sentenced
because the district court erred in calculating the sentencing range when it

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No. 05-50231
1 484 F.3d 712, 714 (5th Cir. 2007) (per curiam).
2 470 F.3d 1143, 1146–49 (5th Cir. 2006); see also Gonzalez, 484 F.3d at 714 (holding
that an incorrect Guideline calculation is an error that is plain).
3 444 F.3d 430, 434–38 (5th Cir. 2006), cert. denied 126 S. Ct. 2958 (2006).
4 Id. at 438 (citing United States v. Ravitch, 128 F.3d 865 (5th Cir. 1997)).
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determined that his prior Colorado conviction for assault was a crime of violence.
We agree.
1. Devora-Zuniga failed to object to the district court’s classification of
his Colorado assault conviction as a crime of violence. We therefore
review that alleged error to determine whether it is plain, and if so,
whether it affected Devora-Zuniga’s substantial rights. See United
States v. Gonzales.1
2. As the Government concedes, the district court plainly erred when
it determined Devora-Zuniga’s conviction for violating section 18-3-
204 of the Colorado Revised Statutes was a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Garcia.2 That
error resulted in a Guideline range of 57 to 71 months; the correctly
calculated range was 15 to 21 months.
3. The miscalculation also affected Devora-Zuniga’s substantial rights.
In United States v. Jones, we explained that this court has applied
two different tests to determine whether the defendant’s substantial
rights had been violated when a non-Guideline sentence was given
based on an incorrect Guideline calculation.3 At times, we have
applied a subjective test and held that a defendant’s substantial
rights are violated only when “there is a reasonable probability that,
but for the misapplication of the guidelines, a lesser sentence would
have been imposed.”4 Other times, we have applied an objective test

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No. 05-50231
5 Id. (citing United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)).
6 See id.
7 Id.
8 490 F.3d 371, 373 (5th Cir. 2007) (quoting United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006)).
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and held that the proper inquiry is whether the district court “could”
have imposed the same sentence.5 This latter test requires us to
determine whether the sentence imposed was reasonable.6
In Jones, we declined to determine which test was the
appropriate one.7 We again reserve that issue for another day.
Devora-Zuniga’s sentence cannot pass muster under either test.
5. There is a reasonable probability that, but for the misapplication of
the Guidelines, Devora-Zuniga would have received a lesser
sentence. The Government argues that the district court based its
50-month sentence solely on the particulars of Devora-Zuniga’s case
(specifically, his criminal history), as 18 U.S.C. § 3553(a) required
it to, and the miscalculation that led to the Guideline sentence
therefore played no part in the ultimate 50-month sentence. The
Guideline sentencing range, however, is one of the § 3553(a) factors.
The district court’s discussion of Devora-Zuniga’s criminal history
and ultimate selection of a 50-month sentence was done with an eye
toward the Guideline range—as we have put it, the Guideline range
was the district court’s “frame of reference.” United States v.
Walters.8 Given that the court’s frame of reference was significantly
off the mark—the Guideline range used (57 to 71 months) was
nearly four times as long as the correctly calculated range (15 to 21
months)—a reasonable probability exists that had the district court

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No. 05-50231
9 Id. (quoting Smith, 440 F.3d at 707).
10 Id. (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)).
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correctly calculated the Guideline range, the sentence given would
have been lower.
6. The district court’s sentence also was unreasonable. When a
defendant is sentenced to a non-Guideline sentence, the district
court is required to “more thoroughly articulate” its reasons for the
sentence than it would have had it given a Guideline sentence.9
Moreover, the further a defendant’s sentence varies from the
correctly calculated Guideline range, the “more compelling the
justification” must be for the sentence.10
Here, the sentence the defendant received (50 months) is over
two times the top end of the correctly calculated Guideline range (15
to 21 months). The district court handed out that sentence after
briefly discussing the defendant’s criminal history and then
concluding: “Based on the information available to me, the
circumstances of this case, and your particular circumstances, the
court is going to find that a reasonable sentence in this case is 50
months of incarceration.” Given the difference between the
defendant’s sentence and the correctly calculated Guideline range,
the district court needed to provide a more compelling justification
for the sentence. The sentence was therefore unreasonable.
Accordingly, we VACATE the sentence and REMAND for re-sentencing.

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