### 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

.

Appeal s 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 sen

tence 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 Case: 16-50784 Document: 00514085659 Page: 1 Date Filed: 07/24/2017No. 16

- 50784

2 I. The offense of conviction assigned a base offense level of 8. Guzman

Rendon had several F lori da convictions that could qualify as drug

- trafficking offenses under U.S.S.G. § L1.2(b)(1)(A)(i), subject ing him to a sixteen

- level en

hancement. The first was a conviction for distribution under Florida Statutes § 893.13(1)(a), which provides that “a per son may not sell, manu facture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled sub

stance.” In connection with the same offense, Guzman

- Rendon was also con

victed of violating Fl orida 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 pro bation office r concluded that these convictions qualified Guzm an - Rendon for the sixteen

- level enhancement for a drug

- traf ficking offense under Sec

tion 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 Guzman

Rendon with a n 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

- Vela zquez , 577 F. App’x 254 (5th Cir. 2014) (per cur

iam). 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. M edina , 589 F. App’x 277 (5th Cir. 2015) (per curiam). T he district court stated its intent to “abide by the guidelines.” It dis

cussed the range to which Guzman

- Rendon would be subject , absent the enhancement

— eight to fourteen months. But it found th at the drug

- Case: 16-50784 Document: 00514085659 Page: 2 Date Filed: 07/24/2017No. 16

- 50784

3 trafficking

- offense enhancement was appropriate, rejecting Guzman

- Rendon’s arguments. This yielded a guidelines range of 41 to 51 months. T he court also stated that, in the event its calculation of the proper range w ere mistaken, 41 to 51 mon ths 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 t he government disagree on whether the Florida convictions, or any of them, qualif ies 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 c ourt 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 pr oponent 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 Case: 16-50784 Document: 00514085659 Page: 3 Date Filed: 07/24/2017No. 16

- 50784

4 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 pub lic defender. Nevertheless, it stated that Guzman

- Rendo n’s conduct

mer ited a departure upward to 41 to 51 months “even if the proper guideline calcu lation is eight to fourteen months.” Richardson states firmly that because the court (1) considered all of the possible guidelines ranges that could have re

s ulted 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 applica

bility . The first is that the court was not explicit enough about its consid er a tion of the 18 U.S.C. 3553(a) sentencing factors. Th at theory is not convincing. The court repeatedly mentioned the 3553(a) factors, though it did not name all of them, an d 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 deter red him from continuing to violate the law. Guzman

Rendon’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

. Case: 16-50784 Document: 00514085659 Page: 4 Date Filed: 07/24/2017No. 16

- 50784

5 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 c ounsel 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 re gardless of error

— removing this case, in coun sel’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 ea rls of the appellate kingdom

. ” 3 The theory behind Richard

son is that the consideration of both the correct and incorrect ranges ―coupled with the statement that the same decision would be made regardless

― operate s 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 applic able 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 (4 th Cir. 2017) (Wilkinson, J., dissenting). Case: 16-50784 Document: 00514085659 Page: 5 Date Filed: 07/24/2017