IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50784

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

versus

DIEGO GUZMAN-RENDON, also known as Armando Guzman, 

also known as Diego Guzman, 

also known as Diego Armando Guzman-Rendon, 

also known as Diego A. Guzman-Rendon, 

also known as Diego Guzman Rendon, also known as Diego A. Guzman,

 Defendant–Appellant.

Appeals from the United States District Court 

for the Western District of Texas

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Diego Guzman-Rendon appeals a sixteen-level enhancement to his sentence for illegal reentry in violation of 8 U.S.C. § 1326. We affirm, concluding 

that if there was error, it was harmless.

United States Court of Appeals

Fifth Circuit

FILED

July 24, 2017

Lyle W. Cayce

Clerk

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I.

The offense of conviction assigned a base offense level of 8. GuzmanRendon had several Florida convictions that could qualify as drug-trafficking 

offenses under U.S.S.G. § L1.2(b)(1)(A)(i), subjecting him to a sixteen-level enhancement. The first was a conviction for distribution under Florida Statutes 

§ 893.13(1)(a), which provides that “a person may not sell, manufacture, or 

deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.” In connection with the same offense, Guzman-Rendon was also convicted of violating Florida Statutes § 934.215, which criminalizes the “use[] [of] 

a two-way communications device . . . to facilitate or further the commission of 

any felony offense.” He was also convicted of conspiracy to sell cocaine. The 

probation officer concluded that these convictions qualified Guzman-Rendon 

for the sixteen-level enhancement for a drug-trafficking offense under Section 2L1.2(b)(1)(A)(i). 

Guzman-Rendon objected to the enhancement based on Sarmientos v. 

Holder, 742 F.3d 624 (5th Cir. 2014). The probation officer agreed and revised

the presentence report (“PSR”) to remove the enhancement, leaving GuzmanRendon with an offense level of 10 and a criminal history category of II. The 

government contended that the enhancement should still be applied based on 

United States v. Juarez-Velazquez, 577 F. App’x 254 (5th Cir. 2014) (per curiam). Guzman-Rendon maintained his position that the enhancement did not 

apply because his Florida convictions did not qualify as drug-trafficking 

offenses; he bolstered his argument with United States v. Medina, 589 F. App’x 

277 (5th Cir. 2015) (per curiam). 

The district court stated its intent to “abide by the guidelines.” It discussed the range to which Guzman-Rendon would be subject, absent the 

enhancement—eight to fourteen months. But it found that the drug-

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trafficking-offense enhancement was appropriate, rejecting Guzman-Rendon’s 

arguments. This yielded a guidelines range of 41 to 51 months. The court also 

stated that, in the event its calculation of the proper range were mistaken, 

41 to 51 months was still the proper range “given Mr. Guzman-Rendon’s prior 

drug history[,] his prior five-year sentence in the state penitentiary[, and] his 

continuing to violate American law.” The court sentenced Guzman-Rendon to 

41 months. 

On appeal, Guzman-Rendon and the government disagree on whether 

the Florida convictions, or any of them, qualifies as a drug-trafficking offense

under the guidelines. The government avers, in the alternative, that even if 

the court erred, any error was harmless. 

II.

We proceed to address harmless error. As explained in United States v. 

Richardson, 676 F.3d 491, 511 (5th Cir. 2012), in this circuit, there are two 

ways to show harmless error if the wrong guidelines range is employed. One 

is to show that the district court considered both ranges (the one now found 

incorrect and the one now deemed correct) and explained that it would give the 

same sentence either way. The other way applies even if the correct guidelines 

range was not considered and requires that "the proponent of the sentence 

convincingly demonstrate[] both (1) that the district court would have imposed 

the same sentence had it not made the error, and (2) that it would have done 

so for the same reasons it gave at the prior sentencing.” United States v. 

Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).1

 

1 Ibarra-Luna contains some language suggesting that it represents the exclusive 

manner for examining harmless error in this circuit. Specifically, it suggests that the 

“harmless error doctrine applies only” if the procedure described above is followed. Id. 

(emphasis added). Richardson postdates Ibarra-Luna, so if Ibarra-Luna’s claims of 

exclusivity were correct, Richardson might not be valid precedent under this circuit’s rule of 

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This case is in the former category. The court acknowledged that the

PSR recommended 8 to 14 months. It also heard about the same range from 

the public defender. Nevertheless, it stated that Guzman-Rendon’s conduct 

merited a departure upward to 41 to 51 months “even if the proper guideline 

calculation is eight to fourteen months.” Richardson states firmly that 

because the court 

(1) considered all of the possible guidelines ranges that could have resulted if it had erred in applying one or more of the enhancements to 

Richardson's offense level; (2) found all of those resulting ranges to be 

insufficient in this case; and (3) stated that it would have imposed the 

same . . . sentence even if one of those ranges had applied, we hold that 

any error the district court made in calculating the guidelines range 

was harmless. 

Richardson, 676 F.3d at 512. That holding is equally valid here.

Two additional arguments can be made against Richardson’s applicability. The first is that the court was not explicit enough about its consideration of the 18 U.S.C. 3553(a) sentencing factors. That theory is not convincing. 

The court repeatedly mentioned the 3553(a) factors, though it did not name all 

of them, and concluded that a higher sentence was necessary even if it was 

error as regards the guidelines based on factors that clearly fit within 

3553(a)—namely, Guzman-Rendon’s recidivism, the fact that his offense was 

indeed selling cocaine even if it did not fit explicitly within the guidelines 

definition of a drug-trafficking offense, and the fact that five years in prison 

apparently had not deterred him from continuing to violate the law. GuzmanRendon’s argument against this point goes essentially to how the court

 

orderliness, which prohibits one panel from overruling another panel absent intervening en 

banc or Supreme Court decisions. See, e.g., Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 

375, 378 (5th Cir. 2008). However, Ibarra-Luna in turn postdates two cases, United States 

v. Duhon, 541 F.3d 391 (5th Cir. 2008) and United States v. Bonilla, 524 F.2d 647 (5th Cir. 

2008), which draw the same distinction Richardson does, and thus, to the extent Ibarra-Luna

claimed exclusivity, that claim would be foreclosed by the rule of orderliness.

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weighed those factors, and “appellate review of a district court’s application of 

the 18 U.S.C. § 3553(a) factors ‘is highly deferential . . . .’”2 There is no reason 

to disregard that deference here.

The final contention came from Guzman-Rendon’s counsel during oral 

argument: that Richardson provides a safe harbor only for those judges who 

state they would pronounce precisely the same sentence. See Richardson, 

676 F.3d at 512. Here, by contrast, the court announced it would apply the 

same range regardless of error—removing this case, in counsel’s view, from

Richardson’s protections. 

We reject this notion, which would convert sentencing into a recitation 

of talismanic words and phrases to save a sentence from the depredations of 

the “dukes and earls of the appellate kingdom.”3 The theory behind Richardson is that the consideration of both the correct and incorrect ranges―coupled 

with the statement that the same decision would be made regardless―operates

in tandem to confer a kind of arguendo agreement with the defendant’s 

position; the court informs him that it will agree with his position for the sake 

of argument but will choose the same sentence anyway. That theory is as 

applicable to the “same range”—the district court’s phrase of choice in this 

case—as it is to the “same sentence.” Richardson, 676 F.3d at 512.

The judgement of sentence is AFFIRMED. 

 

2 United States v. Aldawsari, 740 F.3d 1015, 1021 (5th Cir. 2014) (quoting United 

States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013)). 

3 United States v. Hall, 858 F.3d 254, 294 (4th Cir. 2017) (Wilkinson, J., dissenting).

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