REVISED August 13, 2020


        United States Court of Appeals
             for the Fifth Circuit                             United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                August 12, 2020
                               No. 19-50401                      Lyle W. Cayce
                                                                      Clerk

United States of America,

                                                         Plaintiff—Appellee,

                                   versus

Vicente Galileo Penado-Aparicio,

                                                      Defendant—Appellant.


               Appeal from the United States District Court
                    for the Western District of Texas
                        USDC No. 2:16-CR-947-1


Before Stewart, Clement, and Costa, Circuit Judges.
Carl E. Stewart, Circuit Judge:
       Defendant-Appellant Vicente Galileo Penado-Aparicio (“Penado”)
timely appeals his imprisonment sentence for illegal reentry under 8 U.S.C.
§ 1326. He contends that the district court vindictively resentenced him to a
harsher sentence.
       Penado’s initial sentence was 72 months that was to run concurrently
with a separate 24-month term. He appealed the 72-month sentence for
violating the Ex Post Facto Clause, and the case was remanded for
resentencing. On remand, the district court sentenced him to a 60-month
                                  No. 19-50401


term but ordered that the sentence now run consecutively to the 24-month
sentence for a total of 84 months, a year longer than the original sentence.
       The record evidence supports a presumption of vindictiveness that
has not been rebutted as required by Fifth Circuit case law. Plain error has
been demonstrated. We therefore modify this judgment so that Penado’s
imprisonment terms run concurrently.
                                        I.
       Penado, a citizen of El Salvador, is not authorized to live in the United
States, and in 2012, he was removed after being convicted of illegal reentry
in the District of Nevada. For this conviction, he was sentenced to 30
months’ imprisonment and three years’ supervised release.
       First Sentencing Hearing, Revocation Hearing, and Appeal. In June 2016,
while on supervised release, U.S. Customs and Border Patrol apprehended
Penado near Carrizo Springs, Texas. Prior to this, he had not applied for legal
reentry or otherwise received legal permission to reenter the United States.
He was later indicted for illegally reentering the United States after removal,
in violation of 8 U.S.C. § 1326(a). A jury subsequently found Penado guilty
of this charge.
       The probation office later submitted a presentence investigation
report (“PSR”) to the district court. The PSR outlined Penado’s previous
convictions which included convictions for domestic battery, attempted
burglary, driving under the influence, battery of a custodial officer, and illegal
reentry. Given Penado’s criminal history, the PSR calculated an advisory
guidelines range of 70 to 87 months. The recommended range was calculated
using the November 1, 2016 version of the United States Sentencing
Guidelines (“USSG”). Neither side objected to the PSR. At the April 2017
sentencing hearing, the district court adopted the PSR’s recommended range




                                        2
                                      No. 19-50401


and sentenced Penado to 72 months of imprisonment, followed by three years
of supervised release.
        Immediately after the sentencing hearing, the district court held a
revocation hearing to sentence Penado for violating his 2012 supervised
release terms. There, it sentenced several defendants, including Penado, for
similar violations. Before the court revoked the terms of that release and
sentenced Penado, it stated to another defendant “I no longer have to run
[sentences] concurrently. I can run them consecutively.” The Government
did not seek a consecutive sentence and only sought that the court sentence
Penado to a within-the-guidelines range. The court sentenced Penado to a
24-month imprisonment term to run concurrently with the 72-month
sentence.
        Penado appealed this sentence on the grounds that the district court
had violated the Ex Post Facto Clause because he was sentenced under the
2016 USSG Manual—which produced a substantially higher advisory range
(70 to 87 months) than the 2015 USSG advisory range (30 to 37 months).1
The Government agreed and filed an unopposed motion to vacate the first
sentence and remand the case to the district court for resentencing. See
United States v. Penado-Aparicio, Case No. 18-50304 (5th Cir. Nov. 29, 2018),
ECF No. 35. Our court granted the motion and issued an order vacating the
sentence and remanding to the district court for resentencing.




        1
          The Ex Post Facto Clause is violated if a defendant is sentenced under a USSG
manual that produces a higher range than the manual that was in effect at the time that the
offense was committed. See Peugh v. United States, 

, 544 (2013). Here, U.S.
Border Patrol arrested Penado in June 2016, and at that time, the 2015 USSG were still in
effect. Although the 2016 USSG were in place at sentencing, the district should have
nonetheless sentenced Penado under the 2015 USSG as his criminal conduct occurred
while the 2015 manual was in force.




                                            3
                                 No. 19-50401


       Second Sentencing Hearing and Instant Appeal. On April 15, 2019, the
district court resentenced Penado. No new PSR was filed prior to this
hearing. During the resentencing hearing, the court was displeased and
noted that it had “real heartburn” that neither party objected to the use of
the 2016 USSG in the previous hearing.
       The court determined that under the 2015 USSG, the advisory range
would be 30 to 37 months.
       After confirming the range with Penado’s counsel and the Probation
office, the Government argued for an above-of-the-guidelines sentence
because (1) Penado already received a 30-month sentence for his 2012 illegal
reentry conviction; and (2) based on his lengthy criminal history. In other
words, the Government advocated for a higher sentence using the same
convictions on the record from the previous sentencing hearing. During
allocution with the court, Penado accepted responsibility for his illegal
reentry, promised not to illegally reenter the states again, and characterized
his past criminal conduct as “accident[s]” and “mistakes.”
       In assessing his advisory range, prior convictions which included his
violent felonies, and the nature and circumstances of the offense, the court
found that the advisory guidelines were not adequate. It ultimately varied
from the range of 30 to 37 months and sentenced him to 60 months. This
included a three-year term of supervised release, but the court made clear
that the resentence would run “consecutive to any other sentence.” The
court acknowledged that the previous sentence included a 24-month
concurrent sentence for violating his 2012 supervised release terms.
Nevertheless, the court emphasized that it was now making a change in the
nature of the concurrent sentence because “it would have been concurrent
at the sentence I gave before, but it’s not going to be concurrent now.” There
were no objections. Penado now appeals.




                                      4
                                      No. 19-50401


                                            II.
        Penado did not raise any objections at resentencing; in turn, we review
for plain error. United States v. Benitez, 

, 248 (5th Cir. 2015).
Plain error review requires Penado to show an error that is (1) a clear and
obvious one (2) that affects his substantial rights. See Puckett v. United States,

, 135 (2009). If he can satisfy these requirements, this court
could, in its discretion, remedy the error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”

The analysis below tracks these plain error factors.
                                           III.
        Penado challenges his remand sentence because the district court’s
imposition of this higher total sentence was unconstitutionally vindictive.2
        “Due process of law . . . requires that vindictiveness against a
defendant for having successfully attacked his first conviction must play no
part in the sentence he receives after a new trial.” North Carolina v. Pearce,

, 725 (1969), overruled on other grounds, Alabama v. Smith, 

(1989). In other words, because “fear of such vindictiveness may []
deter a defendant’s exercise of the right to appeal or collaterally attack his
first conviction,” it is considered unconstitutional for a court to vindictively
sentence a defendant following a successful appeal.

is a presumption that a trial court acts
vindictively “whenever a judge imposes a more severe sentence upon a



        2
           Alternatively, Penado contends that the district court reversibly erred when it
exceeded the scope of our mandate order, violating the law of the case doctrine. See United
States v. Pineiro, 

, 204 (5th Cir. 2006) (per curiam). Because we find plain
error on the ground of vindictiveness, we decline to discuss Penado’s alternative
contention.




                                            5
                                  No. 19-50401


defendant” after a successful appeal.

If the new sentence is greater
than the original sentence in its totality, then the new sentence is considered
more severe. United States v. Campbell, 

, 68 (5th Cir. 1997)
(stating that under the aggregate approach, because the defendant’s new
sentence was less than his initial sentence, the defendant did not receive a
harsher sentence); cf. United States v. Moore, 

, 38 (5th Cir. 1993)
(stating that when “the penalty on remand is not harsher than the original
sentence, . . . there can be no claim at all of vindictiveness upon
resentencing” (cleaned up)) (internal quotations and citation omitted).
       The parties agree that because the district court imposed a more
severe sentence on Penado following his successful appeal, his sentence is
presumptively vindictive. Penado’s remand sentence of 84 months is more
severe because it is one year longer in totality compared to his original
sentence of 72 months. See 

. Penado is therefore
entitled to the presumption of vindictiveness.
       The presumption of vindictiveness may be rebutted if the sentencing
court “articulate[s] specific reasons, grounded in particularized facts that
arise either from newly discovered evidence or from events that occur after
the original sentencing” that warrant a more severe sentence. United States
v. Resendez-Mendez, 

, 519 (5th Cir. 2001) (emphasis added). To
be clear, it is the district court’s responsibility to verbalize this new
information in a manner that “affirmatively appear[s]” in the record and
directly supports the imposition of the harsher sentence. 

.
       Upon review of this record, the court predicated the 60-month
sentence on facts already known to it. Indeed, to justify the upward variance
from the advisory range, the court relied on Penado’s criminal history—
which was already detailed in the initial PSR that the district court read and




                                       6
                                  No. 19-50401


relied on in imposing Penado’s original sentence. These stated reasons
cannot be considered “new information or subsequent occurrences that
objectively support imposition of an enhanced sentence on remand.”

.
       The Government’s position is that such objective new information is
present in the record. At oral argument, the Government pointed to the
court’s colloquy with Penado where he characterized his past criminal
conduct as “mistakes” and argued that this allocution can be inferred as
newly discovered facts. We disagree. Not only is this position without
precedent but we explicitly stated otherwise in United States v. Resendez-
Mendez that “the sentencing court’s subjective discrediting of the
defendant’s [] ambiguous statements at allocution is objectively inadequate
to rebut the presumption of vindictiveness.”

The new evidence
must be “particularized facts,” not particularized inferences. And the record
is clear that the district court was not presented with nor did it articulate any
additional “particularized facts” that derived from new evidence or events.
In turn, considering the absence of “newly discovered facts, changed
circumstances, or post-sentencing occurrences,” the presumption of
vindictiveness has not been rebutted.

presumption has been sustained, Penado was
unconstitutionally sentenced. We consider this an error that clearly and
obviously runs contrary to due process. See United States v. Olano, 

, 733–34 (1993) (stating that plain error is satisfied where there is a
deviation from an established legal rule at the time of appellate review).
       Effect on Substantial Rights.       “To show that an error affects a
defendant’s substantial rights, the defendant must show that [the error]
affected the outcome in the district court,” i.e., the defendant “must
demonstrate a probability ‘sufficient to undermine confidence in the




                                       7
                                   No. 19-50401


outcome.’” United States v. Mondragon-Santiago, 

, 364 (5th Cir.
2009) (quoting United States v. Mares, 

, 521 (5th Cir. 2005)). In
the instant sentence, there is a reasonable probability that the error—judicial
vindictiveness—affected Penado’s rights enough to sufficiently undermine
the outcome of his resentencing. Thus, the district court’s clear and obvious
error seriously affected Penado’s substantial rights.
       Whether to Exercise Discretion. The panel may exercise its discretion
to correct the district court’s plain error if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” 

; see United States v. John, 

, 288 (5th Cir. 2010)
(“[U]ltimately, whether a sentencing error seriously affects the fairness,
integrity, or public reputation of judicial proceedings is dependent upon the
degree of the error and the particular facts of the case.”). Of note, while
Penado is considered a recidivist based on his criminal history, the Supreme
Court has held that recidivism can no longer weigh against the exercise of
discretion and “expects relief to ordinar[il]y be available to defendants in
sentencing cases when the first three prongs were met.” United States v.
Urbina-Fuentes, 

, 699 (5th Cir. 2018) (cleaned up) (quoting
Rosales-Mireles v. United States, 

, 1911 (2018)).
       It is the constitutional nature of the error here that merits its
correction. Our precedent identifies constitutional errors as errors more
readily found to affect seriously the fairness, integrity, and public reputation
of judicial proceedings. See United States v. Knowles, 

, 951 (5th
Cir. 1994) (stating that “we have long held that, under the plain error inquiry,
errors of constitutional dimension will be noticed more freely than less
serious errors.”).        Additionally, Penado’s remedy—reforming the
consecutive nature of his sentence—is a straightforward sentencing
judgment modification. See 28 U.S.C. § 2106 (authorizing “any . . . court of
appellate jurisdiction” to “modify, vacate, set aside or reverse any



                                         8
                                    No. 19-50401


judgment”). This remedy does not require retrying Penado or remanding
the case back to square one. Granting appellate relief to Penado only requires
that we exercise our appellate authority to modify the consecutive sentencing
designation so that his sentence runs concurrent with his revocation
sentence. Id.; cf. United States v. Cook, 670 F. App’x 326, 328 (5th Cir. 2016)
(per curiam) (exercising § 2106 authority to modify judgment to “to reflect
that [defendant]’s federal term of imprisonment is to run concurrently with
the related [] sentences”). More importantly, granting his request will
effectively eliminate any perception of a potential constitutional error. See

–08 (explaining that courts should correct
plain errors when necessary to “maintain[] public perception of fairness and
integrity in the justice system”).
       Accordingly, we hold that exercising our discretion here is warranted
by controlling circuit precedent.
                                        III.
       For the foregoing reasons, the district court plainly erred in ordering
the instant sentence to run consecutive to Penado’s revocation sentence. We
therefore exercise our appellate authority, under 28 U.S.C. § 2106, to modify
the judgment to reflect that Penado’s 60-month term of imprisonment is to
run concurrently with his 24-month revocation sentence.




                                         9