United States Court of Appeals
For the Eighth Circuit
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No. 14-2076
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jairo Lemus-Garcia
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 14, 2014
Filed: February 25, 2015
[Unpublished]
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Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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PER CURIAM.
Jairo Lemus-Garcia pleaded guilty to illegal re-entry into the United States
following a felony conviction. See 8 U.S.C. § 1326(a), (b)(1). The district court1
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
sentenced Lemus-Garcia to 27 months’ imprisonment. Lemus-Garcia appeals this
sentence, and we affirm.
In 2011, Lemus-Garcia, a citizen of Guatemala, was convicted of one felony
count of terroristic threats, Neb. Rev. Stat. § 28-311.01, and one count of domestic
assault, Neb. Rev. Stat. § 28-323. These convictions arose from an incident where
Lemus-Garcia attacked his then girlfriend. Lemus-Garcia drove her to a remote
location, hit her repeatedly, and threatened to kill her. Lemus-Garcia and the victim
then returned home where he forced the victim into the bedroom and had sex with
her. Lemus-Garcia was deported from the United States following these convictions.
In November 2013, Lemus-Garcia was arrested for traffic misdemeanors in North
Platte, Nebraska. A fingerprint inquiry identified Lemus-Garcia, and a records search
revealed his deportation and criminal history.
After law-enforcement officials identified Lemus-Garcia, he was charged with
and pleaded guilty to illegal re-entry into the United States following a felony
conviction, a violation of 8 U.S.C. § 1326(a), (b)(1). The plea agreement
recommended an eight-level increase under USSG § 2L1.2(b)(1)(C) because Lemus-
Garcia’s terroristic-threats conviction was an “aggravated felony.” Lemus-Garcia’s
Presentence Investigation Report (“PSR”), however, recommended a sixteen-level
enhancement, because his terroristic-threats conviction qualified as a “crime of
violence” under USSG § 2L1.2(b)(1)(A). At the sentencing hearing, the court
rejected the plea agreement and adopted the sentencing-guidelines recommendations
of the PSR, ultimately determining an advisory sentencing guidelines range of 27 to
33 months. The court also explained that, if the sixteen-level increase were
inappropriate under § 2L1.2(b)(1)(A), it alternatively would vary upward to the same
offense level based on “the extraordinary violence reflected in the record.” Because
it had rejected the guidelines stipulations in the plea agreement, the court offered
Lemus-Garcia the opportunity to withdraw his guilty plea. After a recess, Lemus-
Garcia elected to maintain his guilty plea. When the sentencing hearing
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recommenced, the court formally adopted the PSR’s recommended guidelines
calculations and sentenced Lemus-Garcia to 27 months’ imprisonment. The court
again stated that it would vary upward to the same sentence even if the
§ 2L1.2(b)(1)(A) increase was inappropriate.
On appeal, Lemus-Garcia argues that the district court committed a procedural
error when it determined that the terroristic-threats conviction was a crime of violence
under § 2L1.2(b)(1)(A). Lemus-Garcia argues further that this error was not harmless
because the record indicates that the district court felt bound to include the sixteen-
level enhancement and increase his sentence. We decline to reach the question
whether the terroristic-threats conviction is a crime of violence under
§ 2L1.2(b)(1)(A) and instead affirm on the basis that any procedural error was
harmless.
A district court’s improper calculation of a defendant’s guidelines range
constitutes “significant procedural error.” Gall v. United States, 552 U.S. 38, 51
(2007). This error is harmless, however, if the court was aware that an alternative
range could apply and “would have given the defendant the same sentence regardless
of which guidelines range applied.” United States v. Staples, 410 F.3d 484, 492 (8th
Cir. 2005); see also United States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008)
(collecting cases). In order to pronounce an alternative sentence, the court must
“identif[y] the contested issue and potentially erroneous ruling, set[ ] forth an
alternative holding supported by the law and the record in the case, and adequately
explain[ ] its alternative holding.” United States v. Sayles, 674 F.3d 1069, 1072 (8th
Cir. 2012).
Here, the court made clear that even if the sixteen-level increase did not apply,
it would vary upwards based on Lemus-Garcia’s prior violent conduct. The court
notified Lemus-Garcia before the sentencing hearing that it was “contemplating an
upward variance” based on the nature of Lemus-Garcia’s past violent conduct. At the
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sentencing hearing, the court specifically identified the potential guidelines-
calculation error and explained, “[a]lternatively, I would vary upward to the same
level—that is to say a 16-level bump . . . and I would do so because of the, in my
opinion, rather extraordinary violence that is reflected in the record.” Cf. United
States v. Goodyke, 639 F.3d 869, 875 (8th Cir. 2011) (holding potential procedural
error at sentencing harmless because it was “fairly obvious from the transcript” that
the district court intended to impose the same sentence on an alternative basis). On
appeal, Lemus-Garcia does not challenge the court’s finding regarding his violent
conduct, and past violent conduct is a valid 18 U.S.C. § 3553(a) consideration, United
States v. Ruvalcava-Perez, 561 F.3d 883, 886-87 (8th Cir. 2009). Therefore, the
court’s alternative holding was supported by the law and the record in this case. See
Sayles, 674 F.3d at 1072. Moreover, Lemus-Garcia’s counsel argued for, and the
court considered, the potential sentencing range of 6 to 12 months that corresponded
with the eight-level increase recommended by the plea agreement. Here, “the record
is clear that the district court intended to impose the same sentence . . . whether the
appropriate increase under § 2L1.2(b)(1) was eight, twelve, or sixteen levels.” United
States v. Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir. 2011). Accordingly, any
procedural error was harmless.2
We affirm.3
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2
To the extent that Lemus-Garcia argues that the court committed a procedural
error by treating the guidelines as mandatory, we disagree. See Gall 552 U.S. at 51.
The court specifically recognized that the guidelines are advisory.
3
Lemus-Garcia does not argue that his sentence was substantively
unreasonable, and we need not reach that question. See United States v. Morell, 429
F.3d 1161, 1164 n.2 (8th Cir. 2005).
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