In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3993
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JUAN A. C ORONA-G ONZALEZ,
also known as JUAN R. R AMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-00034-DFH-KPF-1—David F. Hamilton, Judge.
A RGUED O CTOBER 20, 2010—D ECIDED D ECEMBER 2, 2010
Before F LAUM, R IPPLE and E VANS, Circuit Judges.
R IPPLE, Circuit Judge. Juan Corona-Gonzalez seeks re-
view of a sentence imposed by the United States District
Court for the Southern District of Indiana. A jury found
Mr. Corona-Gonzalez guilty of possession with intent
to distribute, and distribution of, 500 grams or more of
a mixture containing a detectable amount of metham-
phetamine and possession of a firearm in furtherance of
a drug trafficking crime. The district court sentenced him
2 No. 09-3993
to 240 months’ imprisonment on each of Counts I and II,
to run concurrently, and 60 months’ imprisonment on
Count III, to be served consecutively, for a total of 300
months’ imprisonment. The court also imposed a term
of five years of supervised release. Because the district
court misapprehended a significant aspect of Mr. Corona-
Gonzalez’s record at the time it imposed the sentence,
we must reverse the judgment of the district court and
remand the case to permit the district court to determine
whether, without that misapprehension, it would have
imposed a different sentence.1
I
BACKGROUND
On February 13, 2008, Mr. Corona-Gonzalez was
arrested during a DEA investigation in Indianapolis,
Indiana, for allegedly delivering a substance containing
methamphetamine to a confidential informant in a Wal-
Mart Supercenter parking lot. He was charged with
knowingly possessing with intent to distribute, and dis-
tributing, 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine
(Counts I and II), in violation of 21 U.S.C. § 841(a)(1),
and knowingly possessing a firearm during and in fur-
therance of a drug trafficking offense (Count III), in
1
The jurisdiction of the district court was based on 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
No. 09-3993 3
violation of 18 U.S.C. § 924(c). A jury convicted him of
all three counts.
The presentence investigation report (“PSR”) contained
the advisory sentencing guidelines calculations, which
neither party contests. It also contained information
regarding the circumstances under which Mr. Corona-
Gonzalez, who was born in Mexico, came to the United
States with his family in 1998. Mr. Corona-Gonzalez
entered this Country, with his mother and siblings, pursu-
ant to a lawfully issued visa to join his father, who
already resided here. In 2002, Mr. Corona-Gonzalez’s
mother and siblings returned voluntarily to Mexico,
after his father was removed from this Country as a
result of a drug conviction. Mr. Corona-Gonzalez, whose
visa had expired, remained in the United States illegally.
The PSR also included Mr. Corona-Gonzalez’s five
previous misdemeanor convictions. These convictions,
which consisted of four traffic offenses and one dis-
orderly conduct offense, had occurred from 2001-2002.
At the sentencing hearing, the district court inquired
whether the defense had any objections to the PSR.
Defense counsel replied that he had reviewed the
report with Mr. Corona-Gonzalez and wished to clarify
the nature of the misdemeanor convictions and the sen-
tences imposed. The district court agreed with the
defense that the point of contention—whether probation
had been imposed—would have no effect on the guide-
lines calculation. Noting that it had received a sen-
tencing memorandum from the defense, the court then
proceeded to approve the sentencing guidelines calcula-
4 No. 09-3993
tion contained in the PSR. The court accepted a correc-
tion to the defense’s sentencing memorandum with
respect to the age of Mr. Corona-Gonzalez’s child and
then heard argument from defense counsel. After permit-
ting Mr. Corona-Gonzalez to address the court, it heard
argument from the Government’s counsel. The court then
announced the sentence that it was prepared to impose,
followed by an explanation:
This is a case—by way of explanation—in which
the Court finds that the guidelines provide a
sound and reasonable basis for imposing the
sentence to accomplish the purposes of section
3553(a)(2).
Looking first at the nature and circumstances of
the offense here. I, frankly, am inclined to agree
with the government. What we have here are lots
of aggravating circumstances and very little by
way of mitigation.
Mr. Corona-Gonzales, you had already been
deported from this country before. You returned
and were dealing methamphetamine, the most
addictive and destructive drug and distribution
in the United States. You were doing so while
armed and that is just a very dangerous, com-
pletely unacceptable combination, for which
Congress has proscribed severe penalties.
There is some debate about some other drugs
and whether the guidelines are excessive. I don’t
have any concerns with respect to methamphet-
No. 09-3993 5
amine as dangerous and as addictive as it is.
Those guidelines seem to me quite reasonable in
terms of protecting the public and reflecting the
seriousness of the offense.
When I look at you as an individual, your history
and characteristics, what I see is somebody—as
I mentioned—deported before and returned in
order to deal drugs; somebody who has consis-
tently had other sorts of legal troubles. If the
criminal history were more serious that [sic] it
is, the sentence would have been significantly
higher even within the category III guideline
range. But I’ve tried to account for the defense
argument that these were all essentially traffic
offenses by sentencing close to the bottom of the
guideline range.
I have no doubt that the sentence is going to be
imposing a burden on your family. That is not a
consequence of the sentence. It is a consequence
of your crime.
Your lawyer has correctly pointed out that you
were not a master mind in this case. But I also
don’t think it’s appropriate to discount your role
any further. You were playing essential roles in
helping to distribute this methamphetamine
and you are appropriately going to be punished
very severely for this, a total of 25 years in prison
followed by another deportation.
I think that sentence, for those reasons, is going
to be consistent with section 3553(a) and it’s con-
6 No. 09-3993
sistent with the advisory guidelines, a severe
punishment for a very serious crime.
Sent. Tr. at 13-14.2
At no point during the hearing did either party object
to these statements as inconsistent with the facts previ-
ously established in the record.3 However, Mr. Corona-
Gonzalez asserts, and the Government concedes, that the
record contains no reference to a previous removal or
an illegal reentry for the purposes of trafficking in
drugs. Instead, the record supports Mr. Corona-
Gonzalez’s assertion that, although he overstayed his
visa, he has remained in the United States since his
initial entry with his family in 1998.
2
The district court may have confused Mr. Corona-Gonzalez’s
history with that of his father, whose removal from this
Country as the result of a drug conviction in 2002, was re-
counted in the PSR.
3
Notably, the sentencing proceeding, in all other respects
reflects the careful, conscientious and reflective efforts of
the district court. Had trial defense counsel informed the
district court of its misapprehension, corrective steps could
have been taken immediately, and this appeal, and subsequent
proceedings in the district court, could have been avoided.
Although primary responsibility for bringing this misappre-
hension to the attention of the district court was certainly
defense counsel’s, counsel for Government, with a duty of
candor to the court and an obligation to ensure the integrity
of the record, also bears some responsibility.
No. 09-3993 7
II
DISCUSSION
Mr. Corona-Gonzalez submits that the district court
committed a significant procedural error, amounting to
plain error, when it sentenced him while under a misap-
prehension as to the circumstances surrounding his
presence in the United States.
In Mr. Corona-Gonzalez’s view, the district court’s
repeated references to a previous removal and return to
the United States during the sentencing hearing demon-
strates that this mistake of fact significantly impacted
the court’s decision and may have ultimately affected
the length of his sentence.
A district court commits a significant procedural error
in sentencing when it “fail[s] to calculate (or improperly
calculat[es]) the Guidelines range, treat[s] the Guidelines
as mandatory, fail[s] to consider the § 3553(a) factors,
select[s] a sentence based on clearly erroneous facts, or fail[s]
to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007) (emphasis
added). Usually, we review procedural errors under a non-
deferential standard. See, e.g., United States v. Rodriguez-
Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005) (noting that
because the defendant based his argument on procedural
errors, the court should review his sentence under a non-
deferential standard). However, because Mr. Corona-
Gonzalez did not object to the alleged procedural defi-
ciency at the time of sentencing, we review for plain
error. See, e.g., United States v. Simpson, 479 F.3d 492, 496
(7th Cir. 2007).
8 No. 09-3993
On plain error review, we may reverse the determina-
tion of the district court only when we conclude that:
“(1) [an] error occurred; (2) the error was ‘plain’; (3) and
the error affected the defendant’s substantial rights.” Id.;
see also United States v. Olano, 507 U.S. 725, 731-36 (1993).
If these criteria are met, we may reverse, in an exercise
of discretion, if we determine that the error “seriously
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 732 (internal
quotation marks omitted); see also Simpson, 479 F.3d at 502.
There is no question that a procedural error occurred
during Mr. Corona-Gonzalez’s sentencing hearing. The
Government concedes that there is nothing in the record
to support the district court’s statements at the sen-
tencing hearing regarding the previous removal of Mr.
Corona-Gonzalez. Both the trial record and the PSR
indicate that Mr. Corona-Gonzalez is an illegal alien
who came to the United States with his family in 1998
under a temporary visa and that he remained in this
Country through the time of his arrest in February 2008.
Furthermore, neither side disputes that the error was
“plain”; the only mention of the previous removal of
Mr. Corona-Gonzalez anywhere in the record was by the
court at sentencing. See, e.g., United States v. Williams, 552
F.3d 592, 593 (7th Cir. 2009) (explaining that an error
is “plain” if it is “clear or obvious”).
We turn now to the question of whether the plain error
affected Mr. Corona-Gonzalez’s substantial rights. In the
context of other procedural errors, we have recognized
that, in the ordinary case, a defendant shoulders the
No. 09-3993 9
burden of demonstrating that the error resulted in preju-
dice to him. See, e.g., United States v. Luepke, 495 F.3d
443, 450-51 (7th Cir. 2007). We see no reason why this
rule should not apply when the issue is whether a district
court relied on a clearly erroneous fact at sentencing.
Indeed, we have stated that, in the plain error context,
we shall reverse when it is “necessary to avoid a miscar-
riage of justice.” United States v. Raney, 342 F.3d 551,
559 (7th Cir. 2003) (noting that even if evidence were
improperly admitted at a jury trial, there is no miscar-
riage of justice if the defendant’s guilt was so clear that
he would have been convicted anyway). Therefore, we
must determine whether the district court’s repeated
references to an erroneous fact in imposing Mr. Corona-
Gonzalez’s sentence is not only “palpably wrong,” but
also likely to “have resulted in a different sentence.”
United States v. Flores-Sandoval, 94 F.3d 346, 351 (7th Cir.
1996) (internal quotation marks omitted); see also United
States v. D’Iguillont, 979 F.2d 612, 614 (7th Cir. 1992)
(internal quotation marks omitted).
Having studied the record and listened to the argu-
ments of counsel, we are left with the firm belief
that there is a substantial chance that the district
court’s misapprehension played a significant role in the
adjudication of the defendant’s sentence. Our reason
for this belief is simple: The district court tells us so in
the sentencing transcript. In stating its reasons for the
sentence it imposed, the court refers to the defendant’s
supposed prior removal and reentry into the United
States not once, but three times. In fact, in stating the
reasons for imposing the chosen sentence, the very first
10 No. 09-3993
factor the court addressed was the supposed removal
and reentry:
Mr. Corona-Gonzales, you had already been
deported from this country before. You returned
and were dealing methamphetamine, the most
addictive and destructive drug and distribution
in the United States. You were doing so while
armed and that is just a very dangerous, com-
pletely unacceptable combination, for which
Congress has proscribed severe penalties.
....
When I look at you as an individual, your history
and characteristics, what I see is somebody—as
I mentioned—deported before and returned in
order to deal drugs; somebody who has consis-
tently had other sorts of legal troubles. If the
criminal history were more serious that [sic] it is,
the sentence would have been significantly
higher even within the category III guideline
range. But I’ve tried to account for the defense
argument that these were all essentially traffic
offenses by sentencing close to the bottom of the
guideline range.
Sent. Tr. at 13-14.
As the above passage demonstrates, after referring to
the dangerousness of the particular drug involved in
the offenses (methamphetamine), the court returns once
again to the supposed reentry after removal and this
time compounds the previous misapprehension by
No. 09-3993 11
stating that Mr. Corona-Gonzalez had reentered the
Country after removal “in order to deal drugs.” Sent. Tr.
at 13.
Later, in justifying what the court termed “a severe
punishment for a very serious crime,” id. at 14, the court
explicitly noted that the present sentence would be fol-
lowed by “another deportation,” id. (emphasis added).
Context plays a crucial role in evaluating the degree
of influence that an unsupported fact has had on a
district court’s sentencing decision. Therefore, decisions
assessing different sentencing situations have limited
utility in our assessment of this record. Nevertheless,
analogous situations can provide a helpful cross-light to
our estimation of the degree of prejudice incurred by
the defendant before us. Recently, in United States v.
González-Castillo, 562 F.3d 80, 81-82 (1st Cir. 2009), the
Court of Appeals for the First Circuit encountered a
situation in which the sentencing court had been under
the misapprehension that the defendant, who was being
sentenced for illegal reentry into the United States, had
committed previously the same crime less than two
years before. Emphasizing the defendant’s multiple
illegal entries, the sentencing court identified deterrence
as a “salient factor” in its decision to sentence the defen-
dant at the high end of the applicable guidelines
range. Id. at 81 (internal quotation marks omitted).
Here, although the district court was not dealing with
an earlier commission of the same crime, the court was
under the significant misapprehension that the de-
fendant, after an earlier removal, had entered the
12 No. 09-3993
United States in violation of the law with the intent to
commit drug trafficking offenses in this Country. This
sequence of events no doubt would raise in the mind of a
conscientious district court a suggestion similar to that
in González-Castillo—that the defendant had evinced a
willingness to take substantial risks in violation of the
law. Likewise, in United States v. Wilson, 614 F.3d 219,
222 (6th Cir. 2010), the Court of Appeals for the Sixth
Circuit confronted a set of circumstances in which the
district court, in deciding upon an appropriate sen-
tence, had mischaracterized the nature of the defendant’s
offense. The Sixth Circuit held that a factual misappre-
hension that affects a district court’s estimation of a de-
fendant’s respect for the law can be an “important fac-
tor” in the imposition of a sentence. Id. at 224.
In assessing the sentencing transcript in this case, we
consider those factors that the judge deemed important
or salient in reaching his decision. We must conclude
on the record before us that the district court, although
certainly very cognizant of the need to protect the public
and promote deterrence, nevertheless gave significant
weight to its misapprehension of the defendant’s
removal and reentry in order to commit drug trafficking
offenses. Therefore, it simply is “not improbable that the
trial judge was influenced by improper factors in
imposing sentence.” Rizzo v. United States, 821 F.2d 1271,
1274 (7th Cir. 1987) (internal quotation marks omitted); see
also United States v. Barnes, 907 F.2d 693, 696 (7th Cir. 1990)
(recognizing that it is difficult to discern what factors
district judges rely on during sentencing); United States v.
Gomer, 764 F.2d 1221, 1223 (7th Cir. 1985) (stating that a
No. 09-3993 13
defendant’s entitlement to relief is not predicated on his
ability to show that the sentencing judge explicitly
relied on an improper factor).
There is a distinct possibility that the district court’s
reliance on the nonexistent fact that Mr. Corona-Gonzalez
previously had been removed and then reentered the
United States to deal drugs affected the district court’s
sentencing assessment. We therefore must conclude that
allowing the present sentence to stand without a reas-
sessment would affect the “fairness, integrity or public
reputation of [the] proceedings.” Olano, 507 U.S. at 732
(internal quotation marks omitted). It is established
firmly that “convicted defendants have a due process
right to be sentenced on the basis of accurate and
reliable information.” United States v. Kovic, 830 F.2d
680, 684 (7th Cir. 1987); see also United States v. Tucker,
404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736,
740-41 (1948). If the district court did indeed sentence
Mr. Corona-Gonzalez based on a fact not supported by
the record, it would deprive Mr. Corona-Gonzalez of
this right. Consequently, even under plain error review,
we must afford him an opportunity to have the district
court reassess his sentence.
Conclusion
Accordingly, we reverse the defendant’s sentence and
remand the case to the district court in order to permit the
district court to reassess the sentence free of the factual
misapprehension that places in serious doubt the fair-
ness of the original imposition of the sentence. On
14 No. 09-3993
remand, the district court’s task will be complete once
it reassesses the sentence free of this misapprehension.
Other aspects of the original sentencing procedure
are not subject to reopening or reconsideration.
R EVERSED and R EMANDED
12-2-10