IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20620

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

PEDRO DAVID GUTIERREZ-HERNANDEZ

also known as Pedro David Gutierrez,

also known as Pedro Gutierrez

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM:

Gutierrez-Hernandez pled guilty to being in the United States following

deportation. The district court increased his prison sentence by applying two

guideline departures that were recommended by the probation officer. Gutierrez

appeals his sentence.

I

The district court adopted the presentence report which preliminarily

calculated a guideline sentence range of 10 to 16 months based on a total offense

level of 10 and a criminal history category of III. The PSR then recommended

two guideline departures. First, it pointed to a 2008 state handgun conviction

United States Court of Appeals

Fifth Circuit

F I L E D

August 28, 2009

Charles R. Fulbruge III

Clerk
No. 08-20620

 552 U.S. 38 (2007). 1

United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008). 2

Id.

3

2

for which Gutierrez was sentenced to 20 days imprisonment. The report

suggested a departure under § 4A1.3, Inadequacy of Criminal History Category,

because if the crime had been federally prosecuted, Gutierrez would have faced

a greater sentence. Second, the PSR recommended a departure under § 5K2.0,

Other Grounds for Departure, based on a 2003 state drug conviction, which,

based on a police department offense report, the probation officer considered

more serious than the guidelines accounted for. Gutierrez filed written

objections to the upward departures in the PSR. In its statement of reasons, the

district court repeated the language from the PSR and checked the boxes

indicating that both departure provisions applied, thereby increasing Gutierrez’s

offense level from 10 to 17. This resulted in a guidelines range of 30 to 37

months. Gutierrez was sentenced to 30 months.

II

A

Under Gall v. United States, our process of reviewing a sentence is 1

bifurcated. “We first examine whether the district court committed any

significant procedural error, such as: (1) failing to calculate (or improperly

calculating) the applicable Guidelines range; (2) treating the Guidelines as

mandatory; (3) failing to consider the 18 U.S.C. § 3553(a) factors; (4) determining

a sentence based on clearly erroneous facts; or (5) failing to adequately explain

the chosen sentence, including an explanation for any deviation from the

Guidelines range.” Under this step of analyzing for procedural error, we review 2

the district court’s interpretation or application of the sentencing guidelines de

novo, and its factual findings for clear error. Next, if the district court’s decision 3
No. 08-20620

Id.

4

Id.

5

 U.S.S.G. § 4A1.3(a)(4)(A) (“[T]he court shall determine the extent of a departure under 6

this subsection by using, as a reference, the criminal history category applicable to defendants

whose criminal history or likelihood to recidivate most closely resembles that of the

defendant’s.”); United States v. Jones, 905 F.2d 867, 869 (5th Cir. 1990).

3

is procedurally sound, we consider the substantive reasonableness of the

sentence, considering the factors in 18 U.S.C. § 3553(a). We apply a 4

presumption of reasonableness to guideline sentences and review for abuse of

discretion sentences that include an upward or downward departure as provided

for in the guidelines.5

B

Gutierrez asserts that the district court misapplied the departure

guidelines, a procedural challenge that we review de novo. The district court

justified a § 4A1.3 departure by reasoning that Gutierrez’s 2008 state gun

conviction understated his criminal history because if the crime had been

federally prosecuted Gutierrez would have been exposed to prosecution as a felon

in possession of a firearm, an offense that carries a substantially higher sentence

than the state offense. 

The prior state sentence may well under-represent the seriousness of

Gutierrez’s criminal history. However, we need not reach that question because

the district court erred in determining the manner in which an adequate

criminal history score is accounted for. The guidelines make plain that a

departure based on the inadequacy of the defendant’s criminal history is made

by adjusting the criminal history category. Here, however, despite citing the 6

departure provision for inadequacy of criminal history, the district court

increased Gutierrez’s offense level, not his criminal history category. A
No. 08-20620

Shepard v. United States., 544 U.S. 13, 26 (2005). 7

United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007). 8

See Shepard, 544 U.S. at 26; Taylor v. United States, 495 U.S. 575, 600 (1990). 9

4

departure based on the inadequacy of criminal history is not made by adjusting

the factor that accounts for the offense level of the instant crime.

The procedural error creates a significant difference in the sentencing

range in this case. Increasing Gutierrez’s offense level from 10 to 17 resulted in

a sentencing range of 30 to 37 months. In comparison, a movement from

criminal history category III to category IV would have resulted in a range of 15

to 21 months. Even moving to the highest criminal history category of VI would

have resulted in a range of 24 to 30 months—below the range of 30 to 37 months

reached by adjusting the offense level.

C

 The district court also cited § 5K2.0 as a ground for departure. To justify

this guideline departure, the court looked to Gutierrez’s 2003 Texas state

conviction for delivery of a controlled substance. The district court recognized

that the offense did not qualify for the felony drug trafficking enhancement in

§ 2L1.2 as this Court has directly held that, without more detail in the

indictment or other Shepard -approved document, the Texas delivery offense 7

does not qualify for the enhancement: “The statutory definition of delivery of a

controlled substance in Texas . . . encompasses activity that does not fall within

section 2L1.2's definition of ‘drug trafficking offense.’” For the departure, the 8

district court looked to the police report—a document it could not consider under

the § 2L1.2 enhancement —to determine that Gutierrez’s conduct involved an 9

actual sale of cocaine, activity within the federal definition of a drug trafficking

offense, and not merely an offer to sell, which is outside the definition. It

determined that Gutierrez’s conduct would have triggered the enhancement if
No. 08-20620

 U.S.S.G. §§ 5K2.1–5K2.5. 10

 543 U.S. 220 (2005). 11

United States v. Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005). 12

United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006). 13

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the indictment had described Gutierrez’s conduct in detail. It therefore applied

the § 5K2.0 departure.

A district court cannot escape Taylor and Shepard by looking to a police

report—which it could not earlier use to determine whether a prior conviction

was a drug trafficking offense—to later justify a departure on the basis that the

enhancement should have applied. Even more fundamentally, the 2003

conviction cannot support this departure because prior offenses serve as the

basis for § 4A1.3 departures, which specifically focus on criminal history, and not

§ 5K2.0 departures, which consider circumstances of the instant offense. The

provision identifies inter alia as relevant circumstances death, physical injury,

psychological injury, abduction, and property damage, all pertinent to the

offense at hand. The district court committed procedural error under the first 10

step of Gall; it gave no valid basis for the § 5K2.0 departure and misapplied the

§ 4A1.3 departure. 

D

The government urges that this Court can affirm the sentence as

reasonable, under the second step of Gall, despite the procedural error in

calculating the guideline sentencing range. If this case were in the Seventh or

Ninth Circuit that argument might have traction. Those circuits, after United

States v. Booker directed that the Guidelines were advisory, found that the 11

guideline departures provisions had been “rendered obsolete” and “replaced by 12

the requirement that judges impose a ‘reasonable’ sentence.”13
No. 08-20620

United States v. Villegas, 404 F.3d 355, 361 (5th Cir. 2005). It is no salient

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distinction that the error in Villegas involved the application of an enhancement provision and

not a departure provision because departures are part of the guidelines: “a sentence that

includes an upward or downward departure as allowed by the Guidelines . . . is also a

Guideline sentence.” United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).

 18 U.S.C. § 3553(a)(4). 15

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (“This consultation 16

requirement, at a minimum, obliges the district court to calculate correctly the sentencing

range prescribed by the Guidelines.”). See also United States v. McBride, 434 F.3d 470, 477

(6th Cir. 2006) (“[T]he appropriate Guideline range—including Guideline departures—must

still be considered. . . . This Guideline sentence is then considered in the context of the section

3553(a) factors.”).

6

This Circuit, however, has found otherwise. In a case vacating and

remanding because the district court misapplied a guideline enhancement, we

stated “nothing suggests that Booker injected a reasonableness standard into the

question whether the district court properly interpreted and applied the

Guidelines or that an appellate court no longer reviews a district court's

interpretation and application of the Guidelines de novo.” Booker left in force 14

18 U.S.C. § 3742(f) which provides: “If the court of appeals determines that . . .

the sentence was imposed in violation of law or imposed as a result of an

incorrect application of the sentencing guidelines, the court shall remand the

case for further sentencing proceedings with such instructions as the court

considers appropriate.” A district court must correctly apply the sentencing

guidelines.

Of course, a court may impose a non-guidelines sentence based on the

reasonableness factors in 18 U.S.C. § 3553(a). But one of those factors is the

sentence established by the guidelines. The properly-calculated guideline 15

sentencing range is the point from which the court may vary, a necessary factor

in determining reasonableness. The Eleventh Circuit labels this the

“consultation requirement,” and the Third Circuit recognizes that error in 16
No. 08-20620

United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006). 17

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calculating the guideline range “may presage the sentence ultimately set.”17

Without the correct guideline range, the court varies from the wrong point.

Because the district court erred in the application of the departure

provisions we VACATE Gutierrez’s sentence and REMAND for resentencing.