IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40768

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAIME IBARRA-LUNA,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In United States v. Morales-Sanchez, we held that a district court must

always “correctly calculat[e] the applicable Guidelines range” before imposing a

sentence. Today we address whether a sentence may be upheld if an error in

1

the calculation is shown to be harmless. We hold that under the discretionary

sentencing regime of Booker and progeny, the harmless error doctrine applies

2

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2010

Lyle W. Cayce

Clerk

609 F.3d 637, 641–42 (5th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 49–50 1

(2007)).

United States v. Booker, 543 U.S. 220 (2005); see also Gall, 552 U.S. 38; Rita v. United 2

States, 551 U.S. 338 (2007).

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only if the proponent of the sentence convincingly demonstrates 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. On the facts before us, we conclude that this high hurdle has not

been cleared and remand for resentencing.

I

Defendant-appellant Jaime Ibarra-Luna (“Ibarra”) pleaded guilty to

illegally reentering the United States after having previously been deported.

3

Ibarra was born in Mexico in 1973 and first entered the United States illegally

when he was a teenager. In 2003, he pleaded guilty to a Texas state felony

offense of delivery of cocaine and was subsequently deported to Mexico. Five

days after being deported, Ibarra reentered the country without permission and

returned to his family in Texas.

In April 2008, Ibarra was arrested again and charged with murder.

Although the record is sparse on details, it appears that Ibarra and a companion

were involved in a high-speed car chase in which Ibarra fired a number of shots

at another vehicle, one of which struck and killed the driver. Ibarra pleaded

guilty and received a 22-year sentence, which he is currently serving in state

custody.

4

After the state proceedings were completed, Ibarra pleaded guilty in this

case. Although Ibarra’s illegal reentry is a separate crime from the murder and

See 8 U.S.C. §§ 1326(a)–(b). 3

Officers investigating Ibarra’s residence also discovered a small quantity of 4

marijuana, but the marijuana charges were dismissed as part of the plea negotiations over the

murder charge.

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the past drug offense, each of the prior convictions raised significant issues

bearing on his sentence.

A

The first disputed issue at Ibarra’s sentencing hearing concerned the effect

of his 2003 drug conviction, which the criminal information and plea agreement

identify as “delivery of cocaine, less than 1 gram.” Relying on a police report

5

alleging that Ibarra sold a quantity of cocaine to an undercover officer, the

Presentence Report (PSR) recommended that Ibarra receive the 12-level

sentence enhancement for a prior felony drug trafficking offense.

6

The district court rejected this recommendation because, as we have

previously held, a conviction for delivery of a controlled substance did not qualify

as a drug trafficking offense under the Guidelines in effect at the time of Ibarra’s

crime. Applying the categorical approach of Taylor v. United States, we look

7

only to the elements of the prior offense, the charging document, and the jury

instructions or plea agreement. We thus consider only those facts that were

8

essential 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

5

if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled

substance listed in Penalty Group 1.”).

See U.S.S.G.§ 2L1.2(b)(1)(B) & cmt. n.1(B)(iv). 6

 495 U.S. 575, 602 (1990).

7

United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005).

8

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as allegations in the police report or any description given in the PSR. Under

9 10

the Guidelines in effect during Ibarra’s crime, arrest, and indictment, a “felony

drug trafficking offense” required the defendant to possess the drugs or to cause

them to be transferred. But Texas law defines delivery of a controlled

11

substance 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

That is, “the [Texas] language encompasses both conduct that does constitute a

drug trafficking offense (transferring cocaine) and conduct that does not (offering

to sell cocaine).” Consequently, Ibarra’s agreement to plead guilty to a charge

13

of “delivery of cocaine” does not establish the facts necessary to impose a drug

trafficking enhancement under the applicable Guidelines.

14

We pause to note that the Guidelines have since been amended to add

“offers to sell” to the definition of a felony drug trafficking offense, closing this

Shepard v. United States, 544 U.S. 13, 16 (2005). 9

United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007); Garza-Lopez, 410 F.3d 10

at 273–74.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iv) (2007); see United States v. Morales-Martinez, 496 11

F.3d 356, 358 (5th Cir. 2007); Gonzales, 484 F.3d at 714–15.

 TEX. HEALTH & SAFETY CODE § 481.002. 12

Morales-Martinez, 496 F.3d at 358.

13

The charging document for the 2003 offense nominally alleges that Ibarra “knowingly 14

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 358–61; 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

CONSPIRACY (Sept. 25, 2009, 1:23 PM), http://volokh.com/posts/1253899387.shtml.

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apparent loophole. The government did not cross-appeal Ibarra’s sentence, and

15

so we do not consider whether the amended Guidelines would call for a longer

sentence or whether the new Guidelines could be applied retroactively to Ibarra’s

conduct.

16

After determining that Ibarra’s drug conviction did not support the twelvelevel enhancement, the district court proceeded to consider two alternatives.

The government argued that the 2003 conviction qualifies as “an aggravated

felony” and is therefore subject to an eight-level enhancement. Ibarra’s counsel

17

disagreed and maintained that the drug conviction falls into the residual

category for “any other felony,” receiving only a four-level enhancement. The

18

district court applied the eight-level enhancement. After sentencing

adjustments not at issue here, the court calculated a Guidelines range of 12 to

18 months.

The government now concedes that applying the eight-level enhancement

was error, and Ibarra should instead have received only a four-level

enhancement. This was error because an “aggravated felony” must be

punishable as a felony under the Controlled Substances Act. The government

19

See U.S.S.G.§ 2L1.2 cmt. n.1(B)(iv) (2008). 15

See Greenlaw v. United States, 554 U.S. 237, 244–45 (2008). But see United States 16

v. Castillo-Estevez, 597 F.3d 238, 241 (5th Cir. 2010) (holding that retroactive application of

amended Guidelines provision is not plain error).

 U.S.S.G. § 2L1.2(b)(1)(C) & cmt. n.3(A).

17

Id. § 2L1.2(b)(1)(D). 18

Id. § 2L1.2 cmt. n.3(A) (adopting definition of “aggravated felony” from 8 U.S.C. 19

§ 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

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concedes that a mere offer to sell, without evidence of possession or transfer, is

tantamount to solicitation and is not proscribed by the Controlled Substances

Act. The correct Guidelines range was 6 to 12 months, not 12 to 18 months.

20

B

The other significant dispute at Ibarra’s sentencing hearing concerned his

recent murder conviction. Even before it finished calculating Ibarra’s Guidelines

range, the district court advised the parties that it thought the state murder

sentence was too lenient and that it planned to compensate by imposing an

above-Guidelines sentence for the federal immigration charges.

The district court understood the murder to involve “chasing some guy

down the highway . . . shooting at -- out the window until he kills a guy in the

middle of the road.” Ibarra’s attorney did not dispute this characterization,

instead 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

how much time he’ll do” because Texas allows some offenders to be released after

serving as little as half of the assigned sentence. The court thus surmised that

Ibarra “might serve [only] 11 years for killing this guy.”

Viewed against this backdrop, the district court determined that a

sentence in the 12 to 18 month range—what it mistakenly believed to be the

applicable 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, 260–61 (5th Cir. 2007) (same).

See United States v. Rivera-Sanchez, 247 F.3d 905, 908–09 (9th Cir. 2001) (en banc).

20

See 18 U.S.C. § 3553(a). 21

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The court announced that, in order “to be certain that Mr. Ibarra doesn’t return

to 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

circumstances behind it, as well as just the offense itself,” the court imposed a

36-month sentence and ordered that it run consecutive to the state murder

sentence. The court gave no further indication of precisely how it arrived at 36

months as the appropriate term of imprisonment.

II

We have applied the harmless error doctrine in several post-Booker

cases. In each, the district court considered the correct Guidelines range and

22

rejected it on Section 3553(a) grounds. We have not treated whether an error

23

in calculating the sentence may be harmless. We turn to the principles of Booker

and progeny.

A

It is established that a district court must consider the applicable

Guidelines range. Section 3553(a) lists the Guidelines range as one of seven

factors 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. 22

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

23

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 655–657; Tzep-Mejia, 461 F.3d at 526–27.

 18 U.S.C. § 3553(a)(4); see Gall, 552 U.S. at 50 n.6. 24

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Indeed, the Supreme Court has instructed that, “as a matter of administration

and to secure nationwide consistency, the Guidelines should be the starting

point and the initial benchmark” in every case.

25

For similar reasons, when a district court sentences outside the Guidelines

range, it must explain on the record why the range would not serve the goals

listed in Section 3553(a). This explanation is necessary “to allow for

26

meaningful appellate review and to promote the perception of fair sentencing.”

27

That is, review of sentencing decisions under an abuse-of-discretion standard

requires that the district court “clearly articulate” how the Section 3553(a)

factors apply to the facts of a particular case, because “[o]nly then can an

appellate court ascertain whether a district court has ignored or slighted a factor

that Congress has deemed pertinent.”

28

Treating the Guidelines as mandatory or failing to consider the Guidelines

at all is reversible error. Without attempting to identify the applicable

Guidelines range, a district court cannot meet its obligation to explain why a

sentence in that range would not be adequate. We cannot find a frustration of

this core statutory command to be harmless.

Gall, 552 U.S. at 49. 25

Id. at 51 (identifying “failing to adequately explain the chosen sentence—including 26

an explanation for any deviation from the Guidelines range” as a “significant procedural

error”).

See id. at 50. 27

United States v. Taylor, 487 U.S. 326, 336–37 (1988); see also id. at 342–43 28

(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).

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B

Elaborating on these standards in Gall, the Supreme Court observed that

a district court commits procedural error by “failing to calculate (or improperly

calculating) the Guidelines range.” In referring to both failure to calculate the

29

Guidelines range and improperly calculating that range as a single form of

procedural error, the Court thought them problematic for the same reasons.

As a result, an incorrect Guidelines calculation will usually invalidate the

sentence, even when the district court chose to impose a sentence outside the

Guidelines range. Although it may well be that the same explanation the court

gave for imposing a sentence outside the miscalculated range could also support

a sentence outside the correctly calculated range, the harmless error doctrine

requires the proponent of the sentence to convincingly demonstrate that the

court actually would have followed the very same reasoning absent the error.

30

This is a heavy burden.

31

That is not to say that it is not possible to show that the district court

would unquestionably have rejected the correct Guidelines range for the very

same reason it rejected the incorrect range. This case provides one such

example. The district court explained that it was imposing an above-Guidelines

sentence because it thought a sentence in the 12-to-18-month range was not long

Gall, 552 U.S. at 51. 29

See, e.g., Morales-Sanchez, 609 F.3d at 641 (citing United States v. Delgado-Martinez,

30

564 F.3d 750, 753 (5th Cir. 2009)); United States v. Tello, 9 F.3d 1119, 1129–30 (5th Cir. 1993).

Delgado-Martinez, 564 F.3d at 753 (5th Cir. 2009) (quoting United States v. Langford,

31

516 F.3d 205, 215–17 (3d Cir. 2008) (“[T]he improper calculation of the Guidelines range can

rarely be shown not to affect the sentence imposed.”)).

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enough 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

plainly a 6-to-12-month sentence also would not be long enough, for precisely the

same reason that the district court gave. In these circumstances, the error may

be harmless. But there is more.

C

Our past cases also make clear that a sentencing error may not be found

harmless unless the proponent of the sentence “proffer[s] sufficient evidence to

convince the appellate court that the district court would have imposed the same

sentence, absent the error.” To satisfy that burden, the proponent “must point

32

to evidence in the record that will convince us that the district court had a

particular sentence in mind and would have imposed it, notwithstanding the

error.”

33

Even when the district court ultimately decides to impose a sentence

outside the Guidelines range, an error in its Guidelines calculation may still

taint the non-Guidelines sentence. For instance, the district court might settle

upon a particular non-Guidelines sentence by doubling the maximum Guidelines

range, or by starting with the Guidelines range and adding or subtracting a fixed

number of years. In such cases it may be clear that the district court’s reasons

for rejecting a sentence in the Guidelines range are unaffected by the error, but

Tello, 9 F.3d at 1130; see also, e.g., Delgado-Martinez, 564 F.3d at 753.

32

United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998).

33

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the error nevertheless is not harmless because the district court would not have

imposed the very same sentence.

The burden of showing that a particular sentence was not derivative of the

Guidelines recommendation is a difficult burden if the district court fails to

indicate why it selected a sentence of a particular length. It may be prudent

when imposing a non-Guidelines sentence to state whether the magnitude of

that sentence rests on factors independent of the Guidelines, thereby permitting

a reviewing court to consider claims of harmless error.

34

III

We now turn to applying these principles to the facts before us. As we

have explained, the calculation error in Ibarra’s sentencing may not be excused

as harmless error unless two requirements are met. First, the government must

convincingly demonstrate that the district court would have imposed a sentence

outside the correct Guidelines range for the same reasons it gave for imposing

a sentence outside the miscalculated Guidelines range. Second, it must show

that the 36-month sentence the district court imposed was not influenced in any

way by the erroneous Guidelines calculation.

As noted earlier, we are convinced that the explanation the district court

gave 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

indicated than an above-Guidelines sentence was necessary because a sentence

of 12 to 18 months was not sufficiently long to protect the public from further

Cf. Gall, 522 U.S. at 50–51 (discussing the need for district courts to follow certain 34

sentencing procedures “to allow for meaningful appellate review”).

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crimes by Ibarra or, given his status as a repeat offender, to promote respect for

the law. Because the correct Guidelines recommendation of 6 to 12 months

35

would have been even lower, an above-Guidelines sentence still would have been

necessary for these same reasons.

We cannot state with the requisite certainty, however, that the district

court would have imposed precisely the same sentence. The district court did

not indicate how it selected a sentence of 36 months, and it did not state whether

this sentence was influenced by its Guidelines calculations or based instead on

independent factors. Notably, the district court was careful to insist that “I need

to understand where he comes out on the Guidelines, and then make my

variance,” which suggests that, quite properly, the Guidelines recommendation

affected the sentence it selected. We also note that, compared to the 12-to-18-

36

month range the court did consider, the 36-month sentence it imposed is exactly

double the Guidelines maximum and exactly triple the Guidelines minimum.

On these facts, the government has not met its burden to convincingly

demonstrate that the court would have imposed the very same sentence if it had

not made an erroneous calculation. We must therefore VACATE Ibarra’s

sentence and REMAND to the district court for resentencing.

37

See 18 U.S.C. §§ 3553(a)(2)(A), (C). 35

 This statement admittedly is not conclusive, as it may be that the court insisted on 36

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

37

procedurally or substantively unreasonable.

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