United States Court of Appeals

for the Fifth Circuit

No. 21-40303

United States of America, 

Plaintiff—Appellee,

versus

Emmanuel De Leon-Sanchez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:20-CR-2109-1

Before Higginbotham, Higginson, and Oldham, Circuit Judges.

Stephen A. Higginson, Circuit Judge:*

After pleading guilty to being found in the United States after a 

previous deportation, Emmanuel De Leon-Sanchez was sentenced to 30 

months’ imprisonment. De Leon-Sanchez appeals his sentence. For the 

following reasons, we AFFIRM.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2022

Lyle W. Cayce

Clerk

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I.

De Leon-Sanchez was first ordered removed from the United States 

in January 2003. He was subsequently removed in February 2003 and again 

in 2006 and 2008. In November 2002, De Leon-Sanchez was convicted of 

conspiracy to commit an offense against or to defraud the United States for 

which he served over 26 months’ imprisonment. In December 2004, 

De Leon-Sanchez was convicted of conspiracy to possess with intent to 

distribute more than 1,000 kilograms of marijuana for which he served over 

28 months’ imprisonment.

1

 The conduct underlying this conviction 

occurred in May 2002, prior to De Leon-Sanchez’s first order of removal. In 

February 2007, De Leon-Sanchez was convicted of a felony illegal re-entry 

offense for which he was sentenced to 28 months’ imprisonment. 

In January 2021, De Leon-Sanchez pleaded guilty in the instant case 

to being found in the United States after a previous deportation, in violation 

of 8 U.S.C. § 1326. At sentencing, the PSR applied two eight-level 

enhancements: one for criminal conduct that occurred before a first order of 

removal and resulted in a sentence of two years or more—based on the 

November 2002 conviction—and one for criminal conduct that occurred 

after a first order of removal and resulted in a sentence of two years or more—

based on the December 2004 conviction. See U.S. Sent’g Guidelines 

Manual § 2L1.2(b)(2)(B), (b)(3)(B) (U.S. Sent’g Comm’n 2018). 

After application of the three-level reduction for acceptance of responsibility, 

1 For both the November 2002 and December 2004 convictions, De Leon-Sanchez 

was initially sentenced to shorter terms of imprisonment, but his supervised release was 

revoked, and he served further time in custody. 

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De Leon-Sanchez was assigned an offense level of 25, which produced a

Guidelines range of 84 to 105 months.2

In his written objections and at the sentencing hearing, De LeonSanchez requested a downward departure, but he did not object to the 

application of the § 2L1.2(b)(3)(B) enhancement. The Government 

contended that De Leon-Sanchez’s criminal history was accurately 

represented in the PSR and requested a sentence within the Guidelines 

range. Alternatively, it requested “a graduated sentence,” i.e., a sentence 

greater than the 28 months that De Leon-Sanchez received for his prior 

§ 1326 conviction. The district court adopted the PSR’s factual findings and 

concluded that its Guidelines calculations had been “correctly scored.” But 

the district court departed from the Guidelines under U.S.S.G. § 2L1.2 

cmt. 6 based on its belief that the eight-level increases associated with the 

2002 and 2004 convictions overstated the seriousness of those offenses. The 

district court then sentenced De Leon-Sanchez to 30 months’ imprisonment. 

In doing so, the district court stated, “Mr. De Leon, just remember your 

sentences do get bigger each time you come here illegally.”

De Leon-Sanchez timely appealed.

II.

On appeal, De Leon-Sanchez claims that the district court erred by 

applying the eight-level enhancement under § 2L1.2(b)(3)(B) for engaging in 

criminal conduct after a first order of removal. He argues that while he was 

convicted of conspiracy to possess with intent to distribute more than 1,000 

2 The PSR applied a two-level reduction in the offense level pursuant to U.S.S.G.

§ 3E1.1(a), and at the sentencing hearing, the district court granted the Government’s 

motion for an additional one-level reduction pursuant to U.S.S.G. § 3E1.1(b).

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kilograms of marijuana in December 2004, he actually engaged in the criminal 

conduct in May 2002, prior to his first order of removal in January 2003. 

Because De Leon-Sanchez did not object to the § 2L1.2(b)(3)(B) 

enhancement in the district court, all parties agree that our review is for plain 

error. Fed. R. Crim. P. 52(b). De Leon-Sanchez must show that the 

district court committed (1) an error, (2) that was clear or obvious, and (3)

that affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-

34 (1993). To demonstrate that the error affected his substantial rights, 

De Leon-Sanchez “must ‘show a reasonable probability that, but for the 

error,’ the outcome of the proceeding would have been different.” MolinaMartinez v. United States, 578 U.S. 189, 194 (2016) (quoting United States v. 

Dominguez Benitez, 542 U.S. 74, 76 (2004)). When those three steps are met, 

“the court of appeals should exercise its discretion to correct the forfeited 

error if the error seriously affects the fairness, integrity or public reputation 

of judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 

1905 (2018) (quoting Molina-Martinez, 578 U.S. at 194).

As the Government concedes, De Leon-Sanchez has established that 

the district court plainly erred by adopting the PSR’s eight-level 

enhancement under § 2L1.2(b)(3)(B). Under this provision, an eight-level 

increase is appropriate where, after a defendant was ordered deported or 

removed from the United States for the first time, he engaged in criminal 

conduct that, at any time, resulted in a conviction for a felony offense (other 

than an illegal re-entry offense) for which the sentence imposed was two 

years or more. U.S.S.G. § 2L1.2(b)(3)(B). We have explained that for 

enhancements under § 2L1.2(b)(3), “the operative time [is] the point when 

the defendant engaged in criminal conduct rather than when the defendant 

sustained a conviction.” United States v. Franco-Galvan, 864 F.3d 338, 343 

(5th Cir. 2017) (internal quotation marks omitted). Though De LeonSanchez was convicted of conspiracy to possess with intent to distribute more 

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than 1,000 kilograms of marijuana in December 2004, after his first order of 

removal, the underlying criminal conduct took place before. Because he 

already received the enhancement under § 2L1.2(b)(2)(B) for criminal 

conduct occurring prior to a first order of removal for the November 2002 

conviction, applying an eight-level enhancement for the December 2004 

conviction was a “clear or obvious” error. United States v. Torres, 856 F.3d 

1095, 1099 (5th Cir. 2017) (“Our conclusion that the district court erred can 

be reached by a straightforward application of the guidelines, and any error 

that can be identified purely by an uncomplicated resort to the language of 

the guidelines is plain.” (internal quotation marks omitted)).

Turning to the third prong of plain error review, De Leon-Sanchez 

must show that the error affected his substantial rights. Olano, 507 U.S. at 

734. “In most cases a defendant who has shown that the district court 

mistakenly deemed applicable an incorrect, higher Guidelines range has 

demonstrated a reasonable probability of a different outcome.” MolinaMartinez, 578 U.S. at 200. Even if the district court downwardly departed 

from the erroneous Guidelines range calculation, “a defendant’s substantial 

rights are affected if: (1) a district court uses the Guidelines as a starting 

point; (2) the Guidelines calculation is incorrect; and (3) the record is silent 

as to what the district court might have done had the Guidelines range been 

correct.” United States v. Blanco, 27 F.4th 375, 381 (5th Cir. 2022). 

However, “[t]here may be instances when, despite an erroneous Guidelines 

range, a reasonable probability of prejudice does not exist,” such as when the 

district court’s explanation of the sentence, “make[s] it clear that the judge 

based the sentence he or she selected on factors independent of the 

Guidelines.” Molina-Martinez, 578 U.S. at 200. 

Had the district court correctly calculated De Leon-Sanchez’s offense 

level, his Guidelines range would have been 37 to 46 months, as opposed to 

the PSR’s 84 to 105 months. See U.S.S.G. ch. 5 pt. A (Sentencing Table). 

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Though the 30-month sentence De Leon-Sanchez actually received still fell 

below the correct Guidelines range, this fact alone would be insufficient to 

show that “a reasonable probability of prejudice does not exist.” MolinaMartinez, 578 U.S. at 200; Blanco, 27 F.4th at 382 n.2. 

However, we think the district court’s statements at sentencing make 

clear that De Leon-Sanchez’s sentence was based not on the erroneously 

calculated Guidelines range, but rather on the sentence he received for a prior

illegal re-entry offense. First, the district court explicitly discounted both the 

erroneous eight-level enhancement under § 2L1.2(b)(3)(B) and the correctly 

applied eight-level enhancement under § 2L1.2(b)(2)(B). The district court 

then imposed the 30-month sentence with no other reference to the 

Guidelines range. Second, the district court concluded its pronouncement 

of the sentence stating, “Mr. De Leon, just remember your sentences do get

bigger each time you come here illegally. So I hope you stay in Mexico.” 

Combined, these two facts show to us that the district court did not “anchor 

[its] discretion” in the erroneously calculated Guidelines range, MolinaMartinez, 578 U.S. at 204, but rather selected the 30-month sentence based 

on a “factor[] independent of the Guidelines,” Molina-Martinez, 578 U.S. at 

200, namely, De Leon-Sanchez’s prior 28-month sentence for illegal reentry.

De Leon-Sanchez argues that, in light of the district court’s 

admonition, “So I hope you stay in Mexico,” the comment about graduated 

sentences for illegal re-entry offenses was merely a warning not to return to 

the United States without authorization, rather than a reference to De LeonSanchez’s previous illegal re-entry sentence. Because the district court made 

no other comments about that prior sentence, De Leon-Sanchez argues that 

“the record is silent as to what the district court might have done had it 

considered the correct Guidelines range.” Molina-Martinez, 578 U.S. at 201. 

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Sanchez’s prior illegal re-entry sentence in mind, the comment makes clear

that, even considering the correct Guidelines range, the court would have 

imposed a graduated sentence, particularly given the Government’s 

argument in favor of one. Thus, De Leon-Sanchez has not shown a 

reasonable probability that but for the Guidelines error, he would have 

received a lesser sentence. Id. at 194.

III.

Accordingly, De Leon-Sanchez’s sentence is AFFIRMED.

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