USA v. Jaime Ibarra-Luna


PUBLISHED OPINION FILED. [09-40768 Vacated & Remanded] Judge: PEH , Judge: EBC , Judge: PRO Mandate pull date is 01/12/2011 for Appellant Jaime Ibarra-Luna [09-40768]

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USA v. Jaime Ibarra-Luna : 09-40768 Case Document: 00511330565 Page: 1 Date Filed: 12/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 22, 2010 N o . 09-40768 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J A I M E IBARRA-LUNA, D e fe n d a n t - Appellant A p p e a l from the United States District Court fo r the Southern District of Texas B e fo r e HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges. P A T R I C K E. HIGGINBOTHAM, Circuit Judge: I n United States v. Morales-Sanchez, we held that a district court must a lw a y s "correctly calculat[e] the applicable Guidelines range" before imposing a s e n te n c e .1 Today we address whether a sentence may be upheld if an error in t h e calculation is shown to be harmless. We hold that under the discretionary s e n te n c in g regime of Booker and progeny,2 the harmless error doctrine applies 1 609 F.3d 637, 64142 (5th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 4950 (2007)). United States v. Booker, 543 U.S. 220 (2005); see also Gall, 552 U.S. 38; Rita v. United States, 551 U.S. 338 (2007). 2 Case: 09-40768 Document: 00511330565 Page: 2 Date Filed: 12/22/2010 No. 09-40768 o n ly if the proponent of the sentence convincingly demonstrates both (1) that the d is t r ic t court would have imposed the same sentence had it not made the error, a n d (2) that it would have done so for the same reasons it gave at the prior s e n te n c in g . On the facts before us, we conclude that this high hurdle has not b e e n cleared and remand for resentencing. I D e fe n d a n t -a p p e lla n t Jaime Ibarra-Luna ("Ibarra") pleaded guilty to ill e g a lly reentering the United States after having previously been deported.3 I b a r r a was born in Mexico in 1973 and first entered the United States illegally w h e n he was a teenager. In 2003, he pleaded guilty to a Texas state felony o ffe n s e of delivery of cocaine and was subsequently deported to Mexico. Five d a y s after being deported, Ibarra reentered the country without permission and r e t u r n e d to his family in Texas. I n April 2008, Ibarra was arrested again and charged with murder. Although the record is sparse on details, it appears that Ibarra and a companion w e r e involved in a high-speed car chase in which Ibarra fired a number of shots a t another vehicle, one of which struck and killed the driver. Ibarra pleaded g u ilt y and received a 22-year sentence, which he is currently serving in state c u s t o d y .4 A fte r the state proceedings were completed, Ibarra pleaded guilty in this c a s e . Although Ibarra's illegal reentry is a separate crime from the murder and 3 See 8 U.S.C. 1326(a)(b). Officers investigating Ibarra's residence also discovered a small quantity of marijuana, but the marijuana charges were dismissed as part of the plea negotiations over the murder charge. 4 2 Case: 09-40768 Document: 00511330565 Page: 3 Date Filed: 12/22/2010 No. 09-40768 t h e past drug offense, each of the prior convictions raised significant issues b e a r in g on his sentence. A T h e first disputed issue at Ibarra's sentencing hearing concerned the effect o f his 2003 drug conviction, which the criminal information and plea agreement id e n tify as "delivery of cocaine, less than 1 gram."5 Relying on a police report a lle g in g that Ibarra sold a quantity of cocaine to an undercover officer, the P r e s e n t e n c e Report (PSR) recommended that Ibarra receive the 12-level s e n te n c e enhancement for a prior felony drug trafficking offense.6 T h e district court rejected this recommendation because, as we have p r e v io u s ly held, a conviction for delivery of a controlled substance did not qualify a s a drug trafficking offense under the Guidelines in effect at the time of Ibarra's c r im e . Applying the categorical approach of Taylor v. United States,7 we look o n ly to the elements of the prior offense, the charging document, and the jury in s t r u c t io n s or plea agreement.8 We thus consider only those facts that were e s s e n t ia l to the conviction; we may not assume the truth of any other facts, such See TEX. HEALTH & SAFETY CODE 481.112(a)(b) ("[A] person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1."). 6 5 See U.S.S.G. 2L1.2(b)(1)(B) & cmt. n.1(B)(iv). 495 U.S. 575, 602 (1990). United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). 7 8 3 Case: 09-40768 Document: 00511330565 Page: 4 Date Filed: 12/22/2010 No. 09-40768 a s allegations in the police report9 or any description given in the PSR.1 0 Under t h e Guidelines in effect during Ibarra's crime, arrest, and indictment, a "felony d r u g trafficking offense" required the defendant to possess the drugs or to cause t h e m to be transferred.1 1 But Texas law defines delivery of a controlled s u b s t a n c e to include "offer[s] to sell," which reaches offers where the defendant is not yet in possession of the drugs and the transaction is never consummated.12 T h a t is, "the [Texas] language encompasses both conduct that does constitute a d ru g trafficking offense (transferring cocaine) and conduct that does not (offering t o sell cocaine)."1 3 Consequently, Ibarra's agreement to plead guilty to a charge o f "delivery of cocaine" does not establish the facts necessary to impose a drug t r a ffic k in g enhancement under the applicable Guidelines.1 4 W e pause to note that the Guidelines have since been amended to add " o ffe r s to sell" to the definition of a felony drug trafficking offense, closing this 9 Shepard v. United States, 544 U.S. 13, 16 (2005). United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007); Garza-Lopez, 410 F.3d at 27374. U.S.S.G. 2L1.2 cmt. n.1(B)(iv) (2007); see United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 2007); Gonzales, 484 F.3d at 71415. 12 11 10 TEX. HEALTH & SAFETY CODE 481.002. Morales-Martinez, 496 F.3d at 358. 13 The charging document for the 2003 offense nominally alleges that Ibarra "knowingly delivered by actual transfer," "by constructive transfer," and "by offering to sell." Notwithstanding this language, a conviction would require the government to prove only one of these allegations, not all three, and therefore we cannot say whether Ibarra's guilty plea was an admission to all three allegations or only to the allegation of offering to sell. See Morales-Martinez, 496 F.3d at 35861; accord United States v. Fuentes, 245 F. App'x 358 (5th Cir. 2007); cf. Orin Kerr, The Strange Practice of Indicting in the Conjunctive, THE VOLOKH CO N S P I R A C Y (Sept. 25, 2009, 1:23 PM), 14 4 Case: 09-40768 Document: 00511330565 Page: 5 Date Filed: 12/22/2010 No. 09-40768 a p p a r e n t loophole.15 The government did not cross-appeal Ibarra's sentence, and s o we do not consider whether the amended Guidelines would call for a longer se n t e n c e or whether the new Guidelines could be applied retroactively to Ibarra's c o n d u c t .1 6 A fter determining that Ibarra's drug conviction did not support the twelvele v e l enhancement, the district court proceeded to consider two alternatives. The government argued that the 2003 conviction qualifies as "an aggravated fe lo n y " and is therefore subject to an eight-level enhancement.1 7 Ibarra's counsel d is a g r e e d and maintained that the drug conviction falls into the residual c a t e g o r y for "any other felony," receiving only a four-level enhancement.1 8 The d is t r ic t court applied the eight-level enhancement. After sentencing a d ju s tm e n t s not at issue here, the court calculated a Guidelines range of 12 to 1 8 months. T h e government now concedes that applying the eight-level enhancement w a s error, and Ibarra should instead have received only a four-level en h a n cem en t. This was error because an "aggravated felony" must be p u n is h a b le as a felony under the Controlled Substances Act.1 9 The government 15 See U.S.S.G. 2L1.2 cmt. n.1(B)(iv) (2008). See Greenlaw v. United States, 554 U.S. 237, 24445 (2008). But see United States v. Castillo-Estevez, 597 F.3d 238, 241 (5th Cir. 2010) (holding that retroactive application of amended Guidelines provision is not plain error). 17 16 U.S.S.G. 2L1.2(b)(1)(C) & cmt. n.3(A). Id. 2L1.2(b)(1)(D). 18 Id. 2L1.2 cmt. n.3(A) (adopting definition of "aggravated felony" from 8 U.S.C. 1101(a)(43), which in turn incorporates 18 U.S.C. 924(c), which includes "any felony punishable under the Controlled Substances Act"); Lopez v. Gonzales, 549 U.S. 47, 50 (2006) (holding that conduct designated as a felony under state law but as only a misdemeanor under 19 5 Case: 09-40768 Document: 00511330565 Page: 6 Date Filed: 12/22/2010 No. 09-40768 c o n c e d e s that a mere offer to sell, without evidence of possession or transfer, is t a n t a m o u n t to solicitation and is not proscribed by the Controlled Substances A c t .2 0 The correct Guidelines range was 6 to 12 months, not 12 to 18 months. B T h e other significant dispute at Ibarra's sentencing hearing concerned his recen t murder conviction. Even before it finished calculating Ibarra's Guidelines r a n g e , the district court advised the parties that it thought the state murder s e n te n c e was too lenient and that it planned to compensate by imposing an a b o v e -G u id e lin e s sentence for the federal immigration charges. T h e district court understood the murder to involve "chasing some guy d o w n the highway . . . shooting at -- out the window until he kills a guy in the m id d le of the road." Ibarra's attorney did not dispute this characterization, in s t e a d asking for leniency based on personal factors. Although Ibarra received a 22-year state sentence, the district court explained that it did not "really know h o w much time he'll do" because Texas allows some offenders to be released after s e r v in g as little as half of the assigned sentence. The court thus surmised that I b a r r a "might serve [only] 11 years for killing this guy." V ie w e d against this backdrop, the district court determined that a s e n te n c e in the 12 to 18 month range--what it mistakenly believed to be the a p p lic a b le Guidelines range--would not satisfy the Section 3553(a) factors.21 the Controlled Substances Act does not qualify as an aggravated felony); United States v. Estrada-Mendoza, 475 F.3d 258, 26061 (5th Cir. 2007) (same). 20 See United States v. Rivera-Sanchez, 247 F.3d 905, 90809 (9th Cir. 2001) (en banc). See 18 U.S.C. 3553(a). 21 6 Case: 09-40768 Document: 00511330565 Page: 7 Date Filed: 12/22/2010 No. 09-40768 T h e court announced that, in order "to be certain that Mr. Ibarra doesn't return t o society in this [c]ountry," a longer sentence would be necessary. Stating that it had considered Ibarra's "convict[ion] of a murder of this type, degree, and the c ir c u m s t a n c e s behind it, as well as just the offense itself," the court imposed a 3 6 -m o n th sentence and ordered that it run consecutive to the state murder s e n te n c e . The court gave no further indication of precisely how it arrived at 36 m o n th s as the appropriate term of imprisonment. II W e have applied the harmless error doctrine in several post-Booker c a s e s .2 2 In each, the district court considered the correct Guidelines range and r e je c t e d it on Section 3553(a) grounds.2 3 We have not treated whether an error in calculating the sentence may be harmless. We turn to the principles of Booker a n d progeny. A I t is established that a district court must consider the applicable G u id e lin e s range. Section 3553(a) lists the Guidelines range as one of seven fa c t o r s that the court must consider when deciding what sentence to impose.24 See United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008); United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008); United States v. Tzep-Mejia, 461 F.3d 522, 526 (5th Cir. 2006). In each case, the district court recognized some uncertainty over the proper Guidelines calculation and therefore proceeded to consider and reject both possible Guidelines ranges, including the correct range, in favor of a non-Guidelines sentence. Duhon, 541 F.3d at 396; Bonilla, 524 F.3d at 655657; Tzep-Mejia, 461 F.3d at 52627. 24 23 22 18 U.S.C. 3553(a)(4); see Gall, 552 U.S. at 50 n.6. 7 Case: 09-40768 Document: 00511330565 Page: 8 Date Filed: 12/22/2010 No. 09-40768 I n d e e d , the Supreme Court has instructed that, "as a matter of administration a n d to secure nationwide consistency, the Guidelines should be the starting p o in t and the initial benchmark" in every case.2 5 F o r similar reasons, when a district court sentences outside the Guidelines r a n g e , it must explain on the record why the range would not serve the goals lis t e d in Section 3553(a).2 6 This explanation is necessary "to allow for m e a n in g fu l appellate review and to promote the perception of fair sentencing." 27 T h a t is, review of sentencing decisions under an abuse-of-discretion standard r e q u ir e s that the district court "clearly articulate" how the Section 3553(a) fa c t o r s apply to the facts of a particular case, because "[o]nly then can an a p p e lla te court ascertain whether a district court has ignored or slighted a factor t h a t Congress has deemed pertinent." 2 8 T r e a t in g the Guidelines as mandatory or failing to consider the Guidelines a t all is reversible error. Without attempting to identify the applicable G u id e lin e s range, a district court cannot meet its obligation to explain why a s e n te n c e in that range would not be adequate. We cannot find a frustration of t h is core statutory command to be harmless. 25 Gall, 552 U.S. at 49. Id. at 51 (identifying "failing to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range" as a "significant procedural error"). 27 26 See id. at 50. United States v. Taylor, 487 U.S. 326, 33637 (1988); see also id. at 34243 (explaining in a Speedy Trial Act case that "the necessity for thorough appellate review require[s] that a district court carefully express its decision . . . in terms of the guidelines specified by Congress" and that failure to offer such an explanation constitutes an abuse of discretion). 28 8 Case: 09-40768 Document: 00511330565 Page: 9 Date Filed: 12/22/2010 No. 09-40768 B E la b o r a t in g on these standards in Gall, the Supreme Court observed that a district court commits procedural error by "failing to calculate (or improperly c a lc u la t in g ) the Guidelines range."2 9 In referring to both failure to calculate the G u id e lin e s range and improperly calculating that range as a single form of p r o c e d u r a l error, the Court thought them problematic for the same reasons. A s a result, an incorrect Guidelines calculation will usually invalidate the s e n te n c e , even when the district court chose to impose a sentence outside the G u id e lin e s range. Although it may well be that the same explanation the court g a v e for imposing a sentence outside the miscalculated range could also support a sentence outside the correctly calculated range, the harmless error doctrine r e q u ir e s the proponent of the sentence to convincingly demonstrate that the c o u r t actually would have followed the very same reasoning absent the error.30 T h is is a heavy burden.3 1 T h a t is not to say that it is not possible to show that the district court w o u ld unquestionably have rejected the correct Guidelines range for the very s a m e reason it rejected the incorrect range. This case provides one such e x a m p le . The district court explained that it was imposing an above-Guidelines s e n te n c e because it thought a sentence in the 12-to-18-month range was not long 29 Gall, 552 U.S. at 51. See, e.g., Morales-Sanchez, 609 F.3d at 641 (citing United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009)); United States v. Tello, 9 F.3d 1119, 112930 (5th Cir. 1993). Delgado-Martinez, 564 F.3d at 753 (5th Cir. 2009) (quoting United States v. Langford, 516 F.3d 205, 21517 (3d Cir. 2008) ("[T]he improper calculation of the Guidelines range can rarely be shown not to affect the sentence imposed.")). 31 30 9 Case: 09-40768 Document: 00511330565 Page: 10 Date Filed: 12/22/2010 No. 09-40768 e n o u g h to prevent Ibarra from returning to society while he is still dangerous. Had the Guidelines range been correctly calculated, the range would have been 6 to 12 months. Yet if a sentence of 12 to 18 months is not long enough, then p la in ly a 6-to-12-month sentence also would not be long enough, for precisely the s a m e reason that the district court gave. In these circumstances, the error may b e harmless. But there is more. C O u r past cases also make clear that a sentencing error may not be found h a r m le s s unless the proponent of the sentence "proffer[s] sufficient evidence to c o n v in c e the appellate court that the district court would have imposed the same s e n te n c e , absent the error."3 2 To satisfy that burden, the proponent "must point t o evidence in the record that will convince us that the district court had a p a r tic u la r sentence in mind and would have imposed it, notwithstanding the e r r o r ." 3 3 E v e n when the district court ultimately decides to impose a sentence o u ts id e the Guidelines range, an error in its Guidelines calculation may still t a in t the non-Guidelines sentence. For instance, the district court might settle u p on a particular non-Guidelines sentence by doubling the maximum Guidelines r a n g e , or by starting with the Guidelines range and adding or subtracting a fixed n u m b e r of years. In such cases it may be clear that the district court's reasons fo r rejecting a sentence in the Guidelines range are unaffected by the error, but 32 Tello, 9 F.3d at 1130; see also, e.g., Delgado-Martinez, 564 F.3d at 753. United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998). 33 10 Case: 09-40768 Document: 00511330565 Page: 11 Date Filed: 12/22/2010 No. 09-40768 t h e error nevertheless is not harmless because the district court would not have im p o s e d the very same sentence. T h e burden of showing that a particular sentence was not derivative of the G u id e lin e s recommendation is a difficult burden if the district court fails to in d ic a te why it selected a sentence of a particular length. It may be prudent w h e n imposing a non-Guidelines sentence to state whether the magnitude of t h a t sentence rests on factors independent of the Guidelines, thereby permitting a reviewing court to consider claims of harmless error.3 4 III W e now turn to applying these principles to the facts before us. As we h a v e explained, the calculation error in Ibarra's sentencing may not be excused a s harmless error unless two requirements are met. First, the government must c o n v in c in g ly demonstrate that the district court would have imposed a sentence o u ts id e the correct Guidelines range for the same reasons it gave for imposing a sentence outside the miscalculated Guidelines range. Second, it must show t h a t the 36-month sentence the district court imposed was not influenced in any w a y by the erroneous Guidelines calculation. A s noted earlier, we are convinced that the explanation the district court g a v e for imposing an above-Guidelines sentence would have led it to do so even if it had considered the correct Guidelines range. The district court clearly in d ic a te d than an above-Guidelines sentence was necessary because a sentence o f 12 to 18 months was not sufficiently long to protect the public from further Cf. Gall, 522 U.S. at 5051 (discussing the need for district courts to follow certain sentencing procedures "to allow for meaningful appellate review"). 34 11 Case: 09-40768 Document: 00511330565 Page: 12 Date Filed: 12/22/2010 No. 09-40768 c r im e s by Ibarra or, given his status as a repeat offender, to promote respect for t h e law.3 5 Because the correct Guidelines recommendation of 6 to 12 months w o u ld have been even lower, an above-Guidelines sentence still would have been n e c e s s a r y for these same reasons. W e cannot state with the requisite certainty, however, that the district c o u r t would have imposed precisely the same sentence. The district court did n o t indicate how it selected a sentence of 36 months, and it did not state whether t h is sentence was influenced by its Guidelines calculations or based instead on in d e p e n d e n t factors. Notably, the district court was careful to insist that "I need t o understand where he comes out on the Guidelines, and then make my v a r ia n c e ," which suggests that, quite properly, the Guidelines recommendation a ffe c t e d the sentence it selected.3 6 We also note that, compared to the 12-to-18m o n th range the court did consider, the 36-month sentence it imposed is exactly d o u b le the Guidelines maximum and exactly triple the Guidelines minimum. O n these facts, the government has not met its burden to convincingly d e m o n s t r a t e that the court would have imposed the very same sentence if it had n o t made an erroneous calculation. We must therefore VACATE Ibarra's s e n te n c e and REMAND to the district court for resentencing.3 7 35 See 18 U.S.C. 3553(a)(2)(A), (C). This statement admittedly is not conclusive, as it may be that the court insisted on first finishing the Guidelines calculation because this is the process prescribed by Gall. In light of this disposition, we do not reach Ibarra's arguments that his sentence was procedurally or substantively unreasonable. 37 36 12

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