IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2008
No. 07-30578 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL SANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before JONES, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Darrell Sanchez challenges the district court’s imposition of a 60-month
sentence for failing to register pursuant to the Sex Offender Registration and
Notification Act (“SORNA”).
Sanchez pleaded guilty to failing to register pursuant to SORNA, in
violation of 18 U.S.C. § 2250. At sentencing, Sanchez and the Government
agreed that “the guidelines associated with the crimes are 2X5.1 and 2X5.2
because there are no other applicable guidelines, specific to this crime.” The
district court noted that this was the only case it had ever encountered in which
there was no applicable guideline, and determined that, in the absence of an
applicable guideline range, it had to sentence Sanchez utilizing the factors set
No. 07-30578
forth in 18 U.S.C. § 3553. The district court noted that the statutory maximum
for a violation of §2250 was 10 years of imprisonment. Then, indicating that it
had considered the factors set forth in § 3553(a), the district court sentenced
Sanchez to a 60-month term of imprisonment and to a five-year term of
supervised release.
However, unbeknownst to the district court or the parties, prior to
Sanchez’s sentencing on June 11, 2007, the Sentencing Commission had
promulgated and submitted to Congress a proposed guideline for violations of §
2250. After Sanchez’s sentencing, the proposed guideline was approved by
Congress and now appears in the 2007 Guidelines Manual as § 2A3.5. It is
undisputed that Sanchez’s sentencing range under the proposed guideline, now
§ 2A3.5, would be significantly less than the 60 month sentence imposed by the
district court.1
On appeal, Sanchez contends that the district court erred in failing to
consider the proposed guideline when calculating his sentencing range. Sanchez
did not raise this argument before the district court, and as such, this Court will
review only for plain error. United States v. Gracia-Cantu, 302 F.3d 308, 310
(5th Cir. 2002). To establish plain error, Sanchez must show that “there is (1)
error, (2) that is plain, and (3) that affects substantial rights.” United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005). If those conditions are met, this Court
has discretion whether to correct the error; generally, it will do so only if “the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. Further, the Supreme Court has made clear that we
1
The parties disagree about exactly what sentencing range Sanchez would be subject
to under the proposed guideline. The Government contends that Sanchez would be in Tier II
with a base offense level of 14, and with the two-point reduction for acceptance of
responsibility, a total offense level of 12, yielding a sentencing range of 21-27 months under
the proposed guidelines. Sanchez maintains that he was Tier I offender with a total offense
level of 10, yielding a guidelines range of 15-21 months. Because we vacate and remand to the
district court for resentencing, we need not resolve this dispute.
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determine whether the error was plain at the time of appellate consideration –
not at the time of trial. See United States v. Martinez-Vega, 471 F.3d 559, 561
(5th Cir. 2006) (citing United States v. Johnson, 520 U.S. 461 (1997)) (holding
that the intervening change in the law made the error plain on appeal).
When reviewing a district court’s application of the guidelines, this Court
“must first ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines
range. . . .” Gall v. United States, 128 S. Ct. 586, 597 (2007). Under the
guidelines, “[i]f the offense is a felony for which no guideline has been
promulgated,” a district court should “apply the most analogous offense
guideline.” U.S.S.G. § 2X5.1. “If there is not a sufficiently analogous guideline,
the provisions of 18 U.S.C. § 3553 shall control, except that any guidelines and
policy statements that can be applied meaningfully in the absence of a Chapter
Two offense guideline shall remain applicable.” Id.
This Court has previously addressed the relevance of proposed guidelines
under § 2X5.1. United States v. Armstead, 114 F.3d 504, 508 (5th Cir. 1997). In
Armstead, we stated that “[w]hen dealing with a new statutory crime, we believe
the courts should defer to the authority of the Sentencing Commission to define,
by amending the guidelines, which particular guideline will be applicable to the
new crime.” Id. We further indicated that, “[w]here, as in this case, evidence of
the [Sentencing] Commission’s policies and goals are publicly available to the
courts, we should utilize those proposed new amendments in making
determinations as to ‘analogous guidelines’ for sentencing purposes under §
2X5.1.” Id.
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No. 07-30578
Although Armstead arose in a different context,2 the Court’s statements
regarding the propriety of considering proposed guidelines are relevant to the
case at hand. Here, although there was no applicable guideline at the time of
sentencing, “evidence of the [Sentencing] Commission’s policies and goals” was
publicly available to the district court in the form of the proposed amendments
to the guidelines. Id. Therefore, the district court should have “defer[red] to the
authority of the Sentencing Comission” and utilized the proposed new
amendments in determining Sanchez’s sentencing range. The district court’s
failure to do so constituted plain error.
Further, the sentencing error affects Sanchez’s substantial rights because
Sanchez can show “a reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). Had the district
court considered the proposed guideline, even under the Government’s
calculations, Sanchez would have a total offense level of 12, yielding a sentencing
range of 21-27 months. The sentence that Sanchez received is more than twice
that provided for in the guidelines range, therefore Sanchez has “demonstrate[d]
2
In Armstead, we addressed whether the district court violated the ex post facto clause
of the Constitution in utilizing the 1995 Guidelines Manual, which was in effect at the time
of sentencing, rather than the 1994 Guidelines Manual, which was in effect at the time the
defendant’s offense was committed. Id. at 507. The 1994 edition did not contain any reference
to the defendant’s statute of conviction,18 U.S.C. § 922(u), whereas the 1995 edition indicated
that the proper guideline for handling § 922(u) violations would be U.S.S.G. § 2K2.1 Id. at
508-09. We found that under the 1994 edition, the most analogous guideline was § 2K2.1, the
guideline used by the district court. Id. at 508. Further, we noted that at the time of
sentencing, the Sentencing Commission had promulgated an amendment indicating that the
proper guideline for handling § 922(u) violations would be U.S.S.G. § 2K2.1 and that it was
appropriate for the district court to consider this amendment when determining the most
analogous guideline. Id. Finally, we compared the provisions of the 1994 edition with the
1995 edition and concluded that although no ex post facto concerns were raised by the district
court’s application of § 2K2.1(b)(5), the imposition of a two-level increase pursuant to §
2K2.1(b)(4) in the 1995 edition did violate the ex post facto clause. Id. at 509-510. But cf.
United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir. 2007) (Jones, Chief Judge,
concurring) (suggesting that, post-Booker, the sentencing guidelines cannot present an ex post
facto problem because they are purely advisory).
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a probability sufficient to undermine confidence in the outcome.” United States
v. Price, 516 F.3d 285 (5th Cir. 2008) (finding that error affected defendant’s
substantial rights when it resulted in the calculation of a guidelines range of
110-120 months, rather than the correct range of 92-115 months). Although the
district court on remand is not bound by the guidelines, it must consider them,
and in doing so, it is required to calculate the proper guidelines range. Villegas,
404 F.3d at 365.3
In light of this substantial disparity, this plain error also affects the
fairness of the judicial proceedings and warrants the exercise of our discretion
to correct the error. See United States v. Garza-Lopez, 410 F.3d 268, 275 (5th
Cir. 2005) (concluding that the imposition of a sentence that was substantially
greater than the guideline range affected the defendant’s substantial rights “and
the fairness of the judicial proceedings”).
Finally, we must emphasize the narrowness of our holding. We hold only
that, where, at the time of sentencing there is no guideline in effect for the
particular offense of conviction, and the Sentencing Commission has
promulgated a proposed guideline applicable to the offense of conviction, the
district court’s failure to consider the proposed guideline when sentencing the
defendant may result in reversible plain error.
For the reasons set forth above, we VACATE the district court’s judgment
and REMAND for resentencing.
3
Because we conclude that the district court committed reversible plain error in failing
to consider the proposed guideline, we do not address Sanchez’s alternative argument that the
district court erred in failing to utilize the sentencing guideline for obstruction of justice, §
2J1.2, as the most analogous guideline.
5