United States v. Delgado-Martinez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 6, 2009

No. 08-50439 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN DELGADO-MARTINEZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, GARZA, and CLEMENT, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Juan Delgado-Martinez raises several procedural challenges to his 30-

month sentence for illegal reentry. For the following reasons, we vacate and

remand the case for re-sentencing.

I

Delgado-Martinez pleaded guilty to being found in the United States after

removal in violation of 8 U.S.C. § 1326. A U.S. Probation Officer completed a

Pre-Sentence Report (“PSR”). With regard to Delgado-Martinez’s criminal-

history score, the PSR recommended a three-point addition for a 1996 burglary

conviction, a three-point addition for a 1999 forgery conviction, and a one-point

addition for a 2005 driving-without-a-license conviction. The PSR also

No. 08-50439

recommended another two-point addition based on the allegation that Delgado-

Martinez was on probation for the 2005 offense at the time of his illegal reentry.

Delgado-Martinez filed written objections to these proposed enhancements,

claiming that the government’s documents were insufficient to prove that he was

the person convicted of the three prior offenses.

At the sentencing hearing, the district court found that the government’s

documents established Delgado-Martinez’s responsibility for the burglary and

forgery convictions, but failed to sufficiently link Delgado-Martinez to the 2005

conviction for driving without a license. Thus, the court granted Delgado-

Martinez’s objection as to the 2005 conviction. However, instead of reducing

Delgado-Martinez’s criminal-history score by the three points added in the PSR

as a result of the 2005 conviction, the court only reduced the score by one point.1

This one-point reduction resulted in a recommended Guidelines range of 30–37

months.2 The district court sentenced Delgado-Martinez to 30 months of

incarceration, and Delgado-Martinez now appeals.

II

In reviewing a sentencing decision, we first must consider whether the

district court committed a significant procedural error, such as improperly

calculating the Guidelines range, treating the Guidelines as mandatory, or

selecting a sentence based on clearly erroneous facts. Gall v. United States, 128

S.Ct. 586, 597 (2007). If the sentence is procedurally sound, we then consider

the “substantive reasonableness of the sentence imposed under an abuse-of-

discretion standard.” Id. In exercising this bifurcated review process, we

1

It appears from the record that the district court simply overlooked the PSR’s two-

point addition based on Delgado-Martinez’s probationary status from the 2005 conviction.

However, it is clear that Delgado-Martinez specifically objected to the two-point addition in

his written objections, thus preserving the issue for appeal.

2

If the district court had reduced Delgado-Martinez’s criminal history by the full three

points, the recommended Guideline range would have been 24–30 months.

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continue to review the district court’s application of the Guidelines de novo and

its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d

751, 764 (5th Cir. 2008).

III

A

On appeal, Delgado-Martinez first contends that the district court erred

in finding that he was the person convicted of the forgery and burglary offenses

alleged in the PSR. According to Delgado-Martinez, the documents offered to

prove his culpability—including an Abstract of Judgment, an Information, and

an Information Summary—lacked identifying information such as matching

names, dates of birth, and fingerprints. However, Delgado-Martinez has failed

to provide copies of the allegedly insufficient documents for our review. See

Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.1992) (explaining that the party

raising an issue has the duty to provide the record relating to that issue); United

States v. Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir.1973)

(same). Moreover, Delgado-Martinez’s briefing is devoid of any citations to the

record in support of his allegations. See Fed. R. App. P. 28(a)(9). Accordingly,

we do not consider Delgado-Martinez’s first issue on appeal. See Powell, 959

F.2d at 26.

B

Delgado-Martinez next contends that the district court erred in calculating

his Guidelines range based on the two-point criminal-history enhancement for

his alleged probationary status at the time of illegal reentry. Delgado-Martinez

correctly argues that there is no factual basis for the two-point enhancement

because the district court separately found that the government had not linked

him to the 2005 offense for which he was allegedly on probation. The

government concedes this calculation error but contends that reversal is not

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warranted because Delgado-Martinez’s 30-month sentence still falls within the

properly calculated Guidelines range of 24–30 months.

Prior to the Supreme Court’s decision in Gall, as long as a sentence fell

within the properly calculated range, we applied a “presumption of

reasonableness” to the sentence regardless of any calculation error. E.g., United

States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007). Under this framework, we

required the party complaining of the calculation error to rebut the presumption

of reasonableness, and we applied a high degree of deference to the district

court’s initial decision. Id. at 375–76. The government contends that this

framework survived Gall. We disagree.

Gall unequivocally established a bifurcated review process: At step one,

the appellate court “must first ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range . . . .” Gall, 128 S.Ct. at 597. If the sentence

is determined to be “procedurally sound,” then the appellate court moves on to

step two—reviewing the sentence for substantive reasonableness. Id.; see United

States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (“[We will] only proceed to

review the substantive reasonableness of procedurally sound sentences.”). Our

pre-Gall analysis conflates these two distinct steps. By applying a presumption

of reasonableness to sentences involving acknowledged procedural errors, our

prior approach contravenes Gall’s directive to treat the two steps as sequential,

dispositive inquiries. In most cases, a significant procedural error will prevent

our review of the sentence for substantive reasonableness. See United States v.

Shor, 549 F.3d 1075, 1077 n.1 (6th Cir. 2008) (“[T]he Supreme Court was . . .

quite explicit in Gall that miscalculating the Guidelines range is a ‘significant

procedural error’ that requires reversal.”).

Nonetheless, not every procedural error will require outright reversal.

While Gall itself is silent on this point, we agree with several of our sister

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circuits that certain “harmless” errors do not warrant reversal. See Grissom, 525

F.3d at 696 (“[W]e will remand non-harmless procedural errors . . . .”) (emphasis

added); accord United States v. Langford, 516 F.3d 205, 215–17 (3d Cir. 2008);

United States v. Weems, 517 F.3d 1027, 1030 (8th Cir. 2008); United States v.

Livesay, 525 F.3d 1081, 1092 (11th Cir. 2008). A procedural error during

sentencing is harmless if “the error did not affect the district court’s selection of

the sentence imposed.” See Williams v. United States, 503 U.S. 193, 203 (1992);

see also United States v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir. 2007). The

burden of establishing that an error is harmless rests on the party seeking to

uphold the sentence: The proponent of the sentence “must point to evidence in

the record that will convince us that the district court had a particular sentence

in mind and would have imposed it, notwithstanding the error made in arriving

at the defendant’s guideline range.” United States v. Huskey, 137 F.3d 283, 289

(5th Cir. 1998); see also Langford, 516 F.3d at 215–17 (explaining that “the

improper calculation of the Guidelines range can rarely be shown not to affect

the sentence imposed”).

In summary, regardless of whether the selected sentence happens to fall

within the properly calculated Guidelines range, we adhere to the following

review process: We first consider whether the district court committed a

significant procedural error as defined by Gall. See Gall, 128 S.Ct. at 597. If the

court has committed such an error, we must remand unless the proponent of the

sentence establishes that the error “did not affect the district court’s selection of

the sentence imposed.” Williams, 503 U.S. at 203. If we are satisfied that the

error was in fact harmless, we then (and only then) proceed to Gall’s second step

and review the substantive reasonableness of the sentence imposed. See Gall,

128 S.Ct. at 597.

Applying this framework to the case at hand, it is clear that the district

court committed a significant procedural error by calculating Delgado-Martinez’s

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Guidelines range based on the improper two-point probation enhancement. See

United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008). (“An error in applying

the guidelines is a significant procedural error that constitutes an abuse of

discretion.”). Thus, we must remand unless the error “did not affect the district

court’s selection of the sentence imposed.” Williams, 503 U.S. at 203.

The government argues that the error was harmless because Delgado-

Martinez’s 30-month sentence fell within both the improperly calculated

Guidelines range (30–37 months) and the properly calculated Guidelines range

absent the probation enhancement (24–30 months). However, the crux of the

harmless-error inquiry is whether the district court would have imposed the

same sentence, not whether the district court could have imposed the same

sentence. See Huskey, 137 F.3d at 289–90. While the fact that the actual

sentence falls within the properly calculated Guidelines range may at times be

relevant to the harmless-error inquiry, it is not dispositive.3 See Langford, 516

F.3d at 216 (“[W]e conclude that such an ‘overlap’ [between the properly and

improperly calculated ranges] does not necessarily render an error in the

Guidelines calculation harmless. Such an overlap, alone, proves too little.”);

accord United States v. Goodman, 519 F.3d 310, 323 (6th Cir. 2008).

Reviewing the record as a whole, we are not convinced that the district

court would have imposed the same sentence absent the Guidelines error. In

fact, the court specifically noted that it found “a fair and reasonable sentence to

be at the bottom of the guidelines, 30 months incarceration.” (Emphasis added).

Thus, it appears that the court consciously selected from the low end of what it

believed to be the available range. There is no indication that the court would

3

Furthermore, we have reversed such “overlap” sentences even under our more-

deferential plain-error review. E.g., United States v. Price, 516 F.3d 285, 289–90 (5th Cir.

2008). Thus, it would be incongruous to treat the overlap as a cure-all in the harmless-error

context.

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have selected the same sentence if the Guidelines range had been properly

calculated at 24–30 months. Under these circumstances, we cannot conclude

that “the district court had [the 30-month] sentence in mind and would have

imposed it, notwithstanding the error made in arriving at the defendant’s

guideline range.” See Huskey, 137 F.3d at 289. Accordingly, we must remand

the case for re-sentencing pursuant to the proper Guidelines range. See Gall,

128 S.Ct. at 597; Huskey, 137 F.3d at 290.

IV

For the foregoing reasons, we VACATE Delgado-Martinez’s 30-month

sentence and REMAND the case for re-sentencing.

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