United States v. Agustine Sanchez-Hernandez

Case: 18-40211 Document: 00515049108 Page: 1 Date Filed: 07/25/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40211 United States Court of Appeals

Fifth Circuit

FILED

July 25, 2019

UNITED STATES OF AMERICA,

Lyle W. Cayce

Plaintiff-Appellee, Clerk

v.

AGUSTINE SANCHEZ-HERNANDEZ, also known as Augustin Sanchez,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, HO, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

IT IS ORDERED that our prior panel opinion, United States v. Sanchez-

Hernandez, 927 F.3d 851 (5th Cir. 2019), is WITHDRAWN and the following

opinion is SUBSTITUTED therefor.

Agustine Sanchez-Hernandez argues the district court plainly erred in

calculating his Guidelines range at sentencing. That calculation was based on

treating his prior state court convictions—for exposing himself to and sexually

assaulting a fourteen-year-old girl—as crimes of violence. We affirm.

I.

On October 17, 2017, Sanchez-Hernandez illegally entered the United

States for the third time. When officers approached him, Sanchez-Hernandez

admitted he had recently waded across the Rio Grande river. So the federal

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No. 18-40211

government charged him with illegally reentering the country after having

been previously removed. 8 U.S.C. § 1326(a)–(b). Sanchez-Hernandez pleaded

guilty on December 6, 2017.

Prior to the scheduled sentencing hearing, the probation office prepared

a Pre-Sentence Report (“PSR”). It assigned an offense level of 17 and a criminal

history category of IV, which yielded a Guidelines range of 37 to 46 months in

prison. 1 Those calculations were based in part on Sanchez-Hernandez’s prior

criminal history.

First, in 2010, he pleaded guilty to indecency with a child. TEX. PENAL

CODE § 21.11. After dancing with a fourteen-year-old girl at a banquet hall,

Sanchez-Hernandez took her outside, began kissing her, unzipped his pants,

exposed himself, grabbed the girl’s hands, and put them on his penis.

Second, also in 2010, a Texas jury convicted Sanchez-Hernandez of

sexually assaulting a child based on the same incident. Id. § 22.011. After

forcing the girl to touch him, Sanchez-Hernandez put his penis in the girl’s

mouth. The state court sentenced him to concurrent two-year sentences for

both offenses and required him to register as a sex offender. Upon his release

in 2012, the federal government removed him to Mexico.

Third, in 2014, Sanchez-Hernandez pleaded guilty to illegal reentry. 8

U.S.C. § 1326(a)–(b). Just one month after the government removed him to

Mexico, Sanchez-Hernandez rafted across the Rio Grande back into Texas. The

federal court sentenced him to 41 months in prison.

The PSR determined these offenses warranted 7 criminal history points.

It assigned 3 points for the indecency offense and 3 points for the illegal reentry

1 The PSR initially assigned an offense level of 18, which yielded a Guidelines range

of 41 to 51 months. But it also assigned an alternative level-17 calculation in the event the

district court awarded a 1-point decrease for acceptance of responsibility. At sentencing, the

government sought—and the district court granted—the additional 1-point reduction.

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offense under § 4A1.1. Then the PSR added 1 additional criminal history point

under § 4A1.2(a)(2) and § 4A1.1(e) because it treated the two sex offenses as

“crimes of violence.” The addition of that 1 point bumped Sanchez-Hernandez

from criminal history category III to category IV.

At sentencing on February 21, 2018, the court began by asking Sanchez-

Hernandez if he had been given “a chance to review [the PSR] with [his]

lawyer.” Sanchez-Hernandez agreed he had. And he had just one correction:

He had been arrested by local police officers, not federal Customs and Border

Patrol officers, as the PSR indicated. But that was all:

THE COURT: Was everything else correct?

DEFENDANT SANCHEZ-HERNANDEZ: Yes. Yes, sir.

Sanchez-Hernandez’s counsel argued the prior convictions were

“remote,” were not “assaultive,” and overrepresented his criminal history. He

therefore asked for a downward departure or a sentence at the low end of the

37-to-46-month range. The government disagreed. It pressed the seriousness

of the prior sex offenses and the quickness of Sanchez-Hernandez’s illegal

reentry after his 2017 release. Accordingly, it asked for an upward variance to

a range of 57 to 71 months. Sanchez-Hernandez added little in his allocution.

He admitted, “truly, I don’t regret this. In a sense, I don’t regret it because I

came to help my family.” (He told the probation office his son has “unspecified

problems with his feet,” and his son’s mother had been diagnosed with cancer.

When the probation office asked for his family’s contact information to confirm

these facts, Sanchez-Hernandez refused to provide it.)

The court adopted the PSR’s findings but concluded a criminal history

category of V (with a range of 46 to 57 months) more accurately reflected the

likelihood of Sanchez-Hernandez’s recidivism. The court noted it had

previously sentenced Sanchez-Hernandez to 41 months for illegal reentry, only

for Sanchez-Hernandez to “return[ ] within about six months of having been

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released from that sentence for this identical crime.” “I believe he merits

graduated punishment,” the court said, “but it’s for his recidivism that he

merits additional time in jail.” So, it sentenced Sanchez-Hernandez to 48

months. Defense counsel objected that the sentence was substantively

unreasonable. Sanchez-Hernandez appealed.

II.

In this appeal, Sanchez-Hernandez argues for the first time that the

district court erred by treating his Texas convictions as crimes of violence and

assigning 1 criminal history point under § 4A1.1(e). That additional point put

him in category IV rather than category III and increased his Guidelines range

from 30–37 months to 37–46 months. Everyone agrees plain-error review

applies.

Rule 52 provides that “[a] plain error that affects substantial rights may

be considered even though it was not brought to the court’s attention.” FED. R.

CRIM. P. 52(b). The Supreme Court has read this language to require a four-

part showing: The defendant must show (1) that the district court committed

an error (2) that is plain and (3) affects his substantial rights and (4) that

failure to correct the error would “seriously affect the fairness, integrity or

public reputation of judicial proceedings.” Johnson v. United States, 520 U.S.

461, 466–67 (1997) (alteration and quotation omitted). Only then may we

correct a forfeited error.

As a threshold matter, the government concedes the first two prongs.

But the government cannot waive the proper interpretation of Rule 52. See

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); EEOC v. Fed. Labor

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Relations Auth., 476 U.S. 19, 23 (1986) (per curiam). And it is unclear whether

the district court committed any “error,” let alone a plain one. 2

Regardless, Sanchez-Hernandez fails on the third prong of the plain-

error standard. Prong three requires Sanchez-Hernandez to prove the error

“affected [his] substantial rights, which in the ordinary case means he . . . must

show a reasonable probability that, but for the error, the outcome of the

proceeding would have been different.” Molina-Martinez v. United States, 136

S. Ct. 1338, 1343 (2016) (citation and quotation omitted). In Molina-Martinez,

the district court stated it was adopting the PSR’s recommendations, sentenced

the defendant at the low end of the (incorrect) Guidelines range, and “provided

no further explanation for the sentence.” Id. at 1344. Because the district

court “said nothing specific about why it chose the sentence” besides merely

adopting the recommended range, “the Guidelines served as the starting point

for the sentencing and were the focal point for the proceedings that followed.”

Id. at 1347. In that scenario, the Court held, it was unfair to require

“additional evidence” that the district court might have imposed a different

sentence under the correct Guidelines range. Id. at 1347–48 (“The decision

today simply states that courts reviewing sentencing errors cannot apply a

categorical rule requiring additional evidence. . . .”).

True, Molina-Martinez predicted erroneous Guidelines ranges will

normally suffice to satisfy the third prong. But the Court recognized that won’t

always be the case. Id. at 1346–47; see Griffith v. United States, 871 F.3d 1321,

2 Plain-error review is available only for forfeitures—not waivers. Intentionally

relinquishing a right (waiver) “extinguish[es] an ‘error’ under Rule 52(b).” United States v.

Olano, 507 U.S. 725, 733 (1993). Here, it’s possible Sanchez-Hernandez relinquished his

right. The district court asked if “everything else [in the PSR was] correct.” Sanchez-

Hernandez said “Yes.” But the record does not reveal which right Sanchez-Hernandez

intended to waive by saying “Yes.” And when it comes to waivers, such ambiguities are

insufficient to extinguish an error. See id. at 733–34. That’s why we’re not holding he waived

the error at issue here.

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1338 (11th Cir. 2017) (Molina-Martinez’s “prediction [of what will normally

suffice] is not, however, a presumption.”). In some cases, like this one, the

district court might offer “a detailed explanation of the reasons the selected

sentence is appropriate.” Molina-Martinez, 136 S. Ct at 1346–47. When it

does so, the question remains: What was driving this judge’s decision to impose

this sentence for this defendant? In answering that question, we apply no

presumptions or categorical rules. Instead, we “consider the facts and

circumstances of the case before” us. Id. at 1346.

Those facts and circumstances prove there is no reasonable probability

of prejudice. At the outset, the district court made crystal clear what was

driving its sentencing decision: “I believe he merits graduated punishment,

but it’s for his recidivism that he merits additional time in jail.” (emphasis

added). The court then accepted the PSR’s findings, but it concluded category

IV “substantially under-represents the likelihood of recidivism given [Sanchez-

Hernandez] had just received a 41-month sentence.” That was insufficient, the

district court concluded, because Sanchez-Hernandez turned around and

reentered again. So the court assigned Sanchez-Hernandez to category V, with

a range of 46 to 57 months. But it never once discussed the (erroneous) range

under category IV. Instead, it constantly juxtaposed its chosen sentence—48

months—with the apparently insufficient prior sentence of 41 months. The

judge did not “use[ ] the sentencing range as the beginning point to explain the

decision to deviate from it.” Peugh v. United States, 569 U.S. 530, 542 (2013)

(quotation omitted). So, “the Guidelines are [not] in a real sense the basis for

the sentence.” Ibid. (emphasis and quotation omitted).

If the range had been 30–37 months rather than 37–46 months, it’s

unlikely anything would have changed. The district court would have treated

category III (with its 37-month ceiling) as plainly insufficient based on its belief

that the earlier 41-month sentence failed to deter Sanchez-Hernandez. And

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the court in fact believed category IV was insufficient because the defendant

quickly reentered the United States after his most recent illegal reentry

conviction. Nothing about the classification of his sex offenses alters that focus

on Sanchez-Hernandez’s contumacy. In fact, the court never cited those

convictions in explaining its chosen sentence—even though counsel had raised

arguments about them earlier. In this particular case, the district court’s

explanation “make[s] it clear that the judge based the sentence . . . on factors

independent of the Guidelines.” Molina-Martinez, 136 S. Ct. at 1347. 3

AFFIRMED.

3 Sanchez-Hernandez also argues “[t]he equities in this case . . . warrant correction of

the error.” Appellant’s Br. 28. In his opening brief, Sanchez-Hernandez relies on “the

equities” under prong four of the plain-error standard, see ibid., but in his reply brief he

discusses “the equities” under prong three, see Reply Br. 5. It is unclear the equities

command relief for recidivist re-entry by a man with multiple convictions for sexually abusing

a child. But it doesn’t matter. Under prong three, it remains the defendant’s burden (not

the government’s) to prove prejudice. See Molina-Martinez, 136 S. Ct. at 1348 (discussing

Rule 52(b)). Sanchez-Hernandez cannot carry that burden here, regardless of the equities,

given the district court’s reasons for its sentence.

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