UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4614
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO ANTONIO MACIAS-MALDONADO, a/k/a Mario Maldonado-Deras,
a/k/a Adalberto Bolanos, a/k/a Mario Martinez-Maldonado, a/k/a Mario Mencia,
a/k/a Adalberto Bel,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Robert E. Payne, Senior District Judge. (3:16-cr-00100-REP-1)
Argued: September 26, 2018 Decided: October 11, 2018
Before WILKINSON, KING, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul Geoffrey Gill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Stephen David Schiller, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C.
Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Tracy
Doherty-McCormick, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Defendant Mario Antonio Macias-Maldonado pleaded guilty in the Eastern
District of Virginia to the offense of illegally reentering the United States as an alien
previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).
The district court sentenced him to 48 months in prison. On appeal, Macias-Maldonado
contends that the district court erred in calculating his Sentencing Guidelines range and
that he is entitled to be resentenced. As explained below, we reject his sentencing
challenge and affirm.
I.
A.
Macias-Maldonado, a citizen of El Salvador, illegally entered the United States in
2006. About three years later, in August 2009, he was convicted in a Virginia state court
of several offenses, including the crime of forgery. In January 2010, Macias-Maldonado
was removed from the United States, but sometime thereafter unlawfully reentered this
country. In February 2017, Macias-Maldonado was convicted of a misdemeanor sexual
battery in a Virginia court and sentenced to 12 months in prison.
In April 2017, Macias-Maldonado pleaded guilty in federal court to illegal reentry
subsequent to a conviction for an aggravated felony, that is, his 2009 forgery conviction
in Virginia. Applying the 2016 edition of the Sentencing Guidelines, Macias-
Maldonado’s presentence report (the “PSR”) suggested a total offense level of 10. That
offense level was derived from a base offense level of 8, see USSG § 2L1.2(a); a 4-level
3
increase because he was convicted of forgery before he was first ordered removed, id.
§ 2L1.2(b)(2)(D); plus a 2-level decrease for acceptance of responsibility, id. § 3E1.1(a).
After placing Macias-Maldonado in a criminal history category of IV, the PSR calculated
an advisory Guidelines range of 15 to 21 months.
At Macias-Maldonado’s sentencing hearing in Richmond on July 13, 2017, the
district court adopted the PSR and considered the parties’ arguments concerning the
appropriate sentence. Macias-Maldonado’s lawyer sought a below-Guidelines sentence
of 12 months plus one day. On the other side, the prosecutor asked the court to depart
and vary upward from the advisory Guidelines range and impose the statutory maximum
of 240 months.
Addressing the parties’ contentions, the district court first decided that Macias-
Maldonado was not entitled to his requested sentence of 12 months plus a day. Next, in
disposing of the Government’s motion for an upward departure and variance, the court
determined that Macias-Maldonado’s criminal history was underrepresented and assigned
him five additional criminal history points. 1 That assignment placed Macias-Maldonado
in a criminal history category of V. The court then ruled that Macias-Maldonado’s total
offense level of 10 failed to adequately account for the seriousness of the conduct
1
During the sentencing hearing, the district court observed that Macias-
Maldonado had been convicted in Virginia in 2009 of multiple offenses, that is, driving
while impaired, operating a motor vehicle without a license, obstructing justice, forgery,
uttering, grand larceny, and the unauthorized use of a motor vehicle. The PSR assigned a
total of two criminal history points for those convictions.
4
underlying his 2017 sexual battery conviction. 2 The court also determined that the
federal offense most analogous to the conduct underlying the Virginia sexual battery
offense was the crime of aggravated sexual abuse, as defined in 18 U.S.C.
§ 2241(a). The court then related that a base offense level of 30 applies to a violation of
§ 2241(a), see USSG § 2A3.1(a)(2), and that Macias-Maldonado would be entitled to a 3-
level decrease for acceptance of responsibility if that base offense level was applied, id.
§ 3E1.1. Utilizing the analogous offense approach, the court concluded that Macias-
Maldonado’s total offense level for his illegal reentry offense of conviction should be 27.
Departing upward to that offense level and applying a criminal history category of V, the
court calculated Macias-Maldonado’s advisory Guidelines range as 120 to 150 months in
prison.
Having arrived at what it viewed as the proper Guidelines range, the district court
observed that a sentence at the bottom of that range, that is, 120 months, would be greater
than necessary to achieve the aims of sentencing. As a result, the court planned to “vary
to arrive at a sentence . . . sufficient but not greater than necessary notwithstanding what
the advisory [G]uidelines say.” See J.A. 166. 3 The court therefore asked each party to
then propose a sentence of less than 120 months. In response, Macias-Maldonado’s
lawyer asserted that a sentence of even 60 months would be excessive, while the
2
The PSR had assigned two additional criminal history points for Macias-
Maldonado’s sexual battery conviction.
3
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
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prosecutor requested a sentence of at least 41 months. After considering those proposals,
along with Macias-Maldonado’s allocution in open court, the court sentenced Macias-
Maldonado to 48 months in prison.
In explaining its 48-month sentence, the district court carefully discussed several
of the 18 U.S.C. § 3553(a) factors. The court stressed that Macias-Maldonado had
consistently displayed his disrespect for the law and that his criminal behavior should be
deterred. The court emphasized that the public needed protection from Macias-
Maldonado’s repeated and serious criminal activities and that his sentence should serve to
deter others from engaging in similar unlawful conduct. The court then concluded that a
48-month prison term was appropriate to accomplish the objectives of sentencing. 4
B.
On July 18, 2017, five days after the sentencing hearing — and prior to entry of
the criminal judgment — the district court sua sponte entered an order vacating Macias-
Maldonado’s sentence. The court therein explained that it had “improperly” calculated
“the upward departure” by substituting the base offense level governing an aggravated
sexual abuse offense for the base offense level applicable to the crime of illegal reentry.
See J.A. 176. The court requested prompt briefing by the parties on that issue and
scheduled another sentencing hearing. In response, Macias-Maldonado objected to the
4
In the sentencing proceedings conducted on July 13, 2017, the district court
decided that Macias-Maldonado’s 48-month sentence would run concurrently with his
state court sentence in Virginia for sexual battery. That ruling granted Macias-
Maldonado nearly 12 months of credit on his federal sentence of 48 months.
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court’s order and contended that it lacked jurisdiction to either vacate the 48-month
sentence or conduct a resentencing. The Government agreed with Macias-Maldonado
that the court lacked the authority to vacate the sentence. It therefore requested
reinstatement of the 48-month sentence.
On August 22, 2017, the district court conducted a hearing on the propriety of its
July 18, 2017 order vacating Macias-Maldonado’s sentence (the “post-sentencing
hearing”). At the post-sentencing hearing, the court first related that it should have
utilized his Virginia sexual battery conviction “not to adjust the base offense level but . . .
as an enhancement,” which would have resulted in an advisory Guidelines range of 57 to
71 months. See J.A. 234. The court emphasized and confirmed, however, that “the
sentence would be the same no matter what happened.” Id. In response, Macias-
Maldonado’s lawyer advised the court that his client planned to appeal the 48-month
sentence and — assuming an award of appellate relief favorable to Macias-Maldonado —
hoped for a sentence of less than 48 months on remand. The court then replied, “We’ll
see what happens,” and commented that Macias-Maldonado could receive a sentence
greater than 48 months if his case happened to be assigned to a different judge. Id. at
238.
On August 31, 2017, by way of a memorandum opinion relating to the post-
sentencing hearing, the district court again explained that, at the sentencing hearing of
July 13, 2017, it had departed upward to an advisory Guidelines range of 120 to 150
months and then varied downward to a 48-month sentence. The opinion reiterated that
the court had erred in calculating the permissible upward departure. The court therein
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explained, however — in agreement with the parties — that it lacked any authority to
correct that error by way of vacatur of the 48-month sentence and a resentencing. In any
event, the court specified that its sentencing error was harmless because it had “impose[d]
the sentence that it independently determined was sufficient but not greater than
necessary under 18 U.S.C. § 3553(a).” See J.A. 253. That very day, the court entered an
order vacating its sua sponte order of July 18, 2017, and reinstating Macias-Maldonado’s
48-month sentence.
The district court’s criminal judgment was entered on September 13, 2017, and
Macias-Maldonado has timely appealed. We possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
On appeal, Macias-Maldonado contends that the district court procedurally erred
in calculating his advisory Guidelines range. More specifically, Macias-Maldonado
asserts that the court, in making the upward departure, incorrectly utilized the base
offense level applicable to the federal offense of aggravated sexual abuse instead of the
base offense level for the illegal reentry offense of conviction. He argues that the alleged
error increased his advisory Guidelines range from 15 to 21 months to 120 to 150
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months. 5 On the other hand, the Government maintains that the alleged error is harmless
and that we should affirm Macias-Maldonado’s 48-month sentence.
We have long recognized that “procedural errors at sentencing are subject to
harmlessness review.” See United States v. Montes-Flores, 736 F.3d 357, 370 (4th Cir.
2013); see also Fed. R. Crim. P. 52(a) (providing that court “must . . . disregard[]” error
“that does not affect substantial rights”). Consequently, rather than resolve the merits of
a Guidelines calculation challenge, we are entitled to assume that a district court erred
and evaluate whether that assumed error is harmless. See United States v. Gomez-
Jimenez, 750 F.3d 370, 382 (4th Cir. 2014). In performing such an analysis, we are to
consider two questions, that is: (1) whether “the district court would have reached the
same result even if it had decided the [G]uidelines issue the other way”; and (2) whether
“the sentence would be [substantively] reasonable even if the [G]uidelines issue had been
decided in the defendant’s favor.” See United States v. McDonald, 850 F.3d 640, 643
(4th Cir. 2017) (internal quotation marks omitted). An error is harmless when we are
“certain” that those two inquiries are satisfied. See United States v. Gomez, 690 F.3d
194, 203 (4th Cir. 2012).
5
Macias-Maldonado maintains that, absent the district court’s error in determining
his base offense level, his advisory Guidelines range would have been 15 to 21 months.
In pursuing that point, however, he fails to acknowledge that the court made a criminal
history departure — which he does not challenge on appeal — and placed him in a
criminal history category of V. Applying a total offense level of 10, Macias-
Maldonado’s advisory Guidelines range would have been 21 to 27 months. Giving
Macias-Maldonado the benefit of doubt, however, we accept his contention of an
advisory Guidelines range of 15 to 21 months.
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A.
Macias-Maldonado argues that the first prong of the harmlessness inquiry is not
satisfied in these proceedings. He contends that the record is equivocal concerning the
district court’s intent to impose a 48-month sentence absent the advisory Guidelines
calculation error. In support of that contention, Macias-Maldonado emphasizes the
court’s “We’ll see what happens” comment during the post-sentencing hearing. See J.A.
238. Additionally, Macias-Maldonado maintains that the court’s aborted effort to vacate
the 48-month sentence demonstrates that it would not have imposed that sentence had it
fully understood the correct advisory Guidelines range.
For us to be certain that a district court would have imposed the same sentence
absent any procedural error, we need “something more than a review by the district court
of the § 3553(a) factors.” See Montes-Flores, 736 F.3d at 370. That is, we must be
satisfied that “the district court’s sentencing intent [is] . . . clear from the record.” See
McDonald, 850 F.3d at 645. We do not require, however, that the sentencing court
“specifically state that it would give the same sentence” under a different advisory
Guidelines range. See Montes-Flores, 736 F.3d at 370 (internal quotation marks
omitted).
Our assessment of the record leads us to conclude that the district court would
have imposed a 48-month sentence in any event. More specifically, even if the court had
not miscalculated Macias-Maldonado’s advisory Guidelines range by applying the base
offense level applicable to the offense of aggravated sexual abuse, it would have reached
the same result. Contrary to Macias-Maldonado’s contention, the court’s explanations at
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the post-sentencing hearing do not cast any doubt on its unambiguous intention to impose
a 48-month sentence, regardless of the applicable Guidelines range. In fact, during that
very hearing, the court emphasized that Macias-Maldonado’s “sentence would be the
same no matter what happened.” See J.A. 234. The court also confirmed in its
memorandum opinion — filed almost immediately after the post-sentencing hearing —
that its Guidelines calculation error was harmless, in that the court had imposed the
sentence it determined was necessary under the § 3553(a) factors. See United States v.
Mann, 709 F.3d 301, 306 (4th Cir. 2013) (explaining that this Court “must defer to the
sentencing judge’s reasonable understanding of the record — and particularly his
interpretation of his own earlier findings”).
In these circumstances, it would make little sense for us to remand this matter for
the district court to simply rearticulate its intention to impose a 48-month sentence. See
United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011) (“[I]t would make no
sense to set aside a reasonable sentence and send the case back to the district court since
it has already told us that it would impose exactly the same sentence.” (alteration and
internal quotation marks omitted)); United States v. Smith, 442 F.3d 868, 871 (5th Cir.
2006) (“To require district judges to make talismanic incantations in cases . . . when the
sentencer’s intent is otherwise apparent and unambiguous . . . would be to elevate form
over substance.”). We will therefore turn to and assess the sole remaining question:
whether the 48-month sentence imposed on Macias-Maldonado is substantively
reasonable.
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B.
We review a sentence “within or outside of the Guidelines range, as a result of a
departure or of a variance, . . . for reasonableness pursuant to an abuse of discretion
standard.” See United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir. 2011). When
a sentencing court has applied a departure provision or varied from the advisory
Guidelines range, the court must have accorded “‘serious consideration to the extent’ of
the departure or variance, and ‘must [have] adequately explain[ed] the chosen sentence to
allow for meaningful appellate review and to promote the perception of fair sentencing.’”
Id. (quoting Gall v. United States, 552 U.S. 38, 46 (2007)). In considering the
substantive reasonableness of a sentence, we are obliged to “take[] into account the
totality of the circumstances,” see Gall, 552 U.S. at 51, and “give[] due deference to the
[d]istrict [c]ourt’s . . . decision that the § 3553(a) factors, on the whole, justif[y] the
sentence,” see id. at 59-60.
Accepting Macias-Maldonado’s advisory Guidelines range as 15 to 21 months, we
are satisfied that his 48-month sentence is substantively reasonable. The district court
thoroughly explained why that sentence was necessary under the
§ 3553(a) factors. More specifically, the court aptly observed that Macias-Maldonado
had consistently flouted the law, not only by twice illegally entering the United States,
but also by committing numerous crimes in this country. Additionally, the court
emphasized that the public was entitled to be protected from Macias-Maldonado, who
had “violat[ed] another human being” in the course of committing a sexual battery
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offense after he unlawfully reentered the United States. See J.A. 171. The court also
properly stressed the need for both individual and general deterrence.
Because Macias-Maldonado’s sentence is supported by the district court’s detailed
consideration of the § 3553(a) factors, we are satisfied that his 48-month sentence is
substantively reasonable. See Savillon-Matute, 636 F.3d at 124 (affirming 36-month
sentence for illegal reentry by assuming Guidelines range of 4 to 10 months and relying
on defendant’s earlier assault conviction). The alleged sentencing error was therefore
harmless, and a remand for resentencing is not warranted.
III.
Pursuant to the foregoing, we reject Macias-Maldonado’s sentencing challenge
and affirm the criminal judgment.
AFFIRMED
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