IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 6, 2009
No. 08-50439 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN DELGADO-MARTINEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before SMITH, GARZA, and CLEMENT, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Juan Delgado-Martinez raises several procedural challenges to his 30-
month sentence for illegal reentry. For the following reasons, we vacate and
remand the case for re-sentencing.
I
Delgado-Martinez pleaded guilty to being found in the United States after
removal in violation of 8 U.S.C. § 1326. A U.S. Probation Officer completed a
Pre-Sentence Report (“PSR”). With regard to Delgado-Martinez’s criminal-
history score, the PSR recommended a three-point addition for a 1996 burglary
conviction, a three-point addition for a 1999 forgery conviction, and a one-point
addition for a 2005 driving-without-a-license conviction. The PSR also
No. 08-50439
recommended another two-point addition based on the allegation that Delgado-
Martinez was on probation for the 2005 offense at the time of his illegal reentry.
Delgado-Martinez filed written objections to these proposed enhancements,
claiming that the government’s documents were insufficient to prove that he was
the person convicted of the three prior offenses.
At the sentencing hearing, the district court found that the government’s
documents established Delgado-Martinez’s responsibility for the burglary and
forgery convictions, but failed to sufficiently link Delgado-Martinez to the 2005
conviction for driving without a license. Thus, the court granted Delgado-
Martinez’s objection as to the 2005 conviction. However, instead of reducing
Delgado-Martinez’s criminal-history score by the three points added in the PSR
as a result of the 2005 conviction, the court only reduced the score by one point.1
This one-point reduction resulted in a recommended Guidelines range of 30–37
months.2 The district court sentenced Delgado-Martinez to 30 months of
incarceration, and Delgado-Martinez now appeals.
II
In reviewing a sentencing decision, we first must consider whether the
district court committed a significant procedural error, such as improperly
calculating the Guidelines range, treating the Guidelines as mandatory, or
selecting a sentence based on clearly erroneous facts. Gall v. United States, 128
S.Ct. 586, 597 (2007). If the sentence is procedurally sound, we then consider
the “substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Id. In exercising this bifurcated review process, we
1
It appears from the record that the district court simply overlooked the PSR’s two-
point addition based on Delgado-Martinez’s probationary status from the 2005 conviction.
However, it is clear that Delgado-Martinez specifically objected to the two-point addition in
his written objections, thus preserving the issue for appeal.
2
If the district court had reduced Delgado-Martinez’s criminal history by the full three
points, the recommended Guideline range would have been 24–30 months.
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continue to review the district court’s application of the Guidelines de novo and
its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
III
A
On appeal, Delgado-Martinez first contends that the district court erred
in finding that he was the person convicted of the forgery and burglary offenses
alleged in the PSR. According to Delgado-Martinez, the documents offered to
prove his culpability—including an Abstract of Judgment, an Information, and
an Information Summary—lacked identifying information such as matching
names, dates of birth, and fingerprints. However, Delgado-Martinez has failed
to provide copies of the allegedly insufficient documents for our review. See
Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.1992) (explaining that the party
raising an issue has the duty to provide the record relating to that issue); United
States v. Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir.1973)
(same). Moreover, Delgado-Martinez’s briefing is devoid of any citations to the
record in support of his allegations. See Fed. R. App. P. 28(a)(9). Accordingly,
we do not consider Delgado-Martinez’s first issue on appeal. See Powell, 959
F.2d at 26.
B
Delgado-Martinez next contends that the district court erred in calculating
his Guidelines range based on the two-point criminal-history enhancement for
his alleged probationary status at the time of illegal reentry. Delgado-Martinez
correctly argues that there is no factual basis for the two-point enhancement
because the district court separately found that the government had not linked
him to the 2005 offense for which he was allegedly on probation. The
government concedes this calculation error but contends that reversal is not
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No. 08-50439
warranted because Delgado-Martinez’s 30-month sentence still falls within the
properly calculated Guidelines range of 24–30 months.
Prior to the Supreme Court’s decision in Gall, as long as a sentence fell
within the properly calculated range, we applied a “presumption of
reasonableness” to the sentence regardless of any calculation error. E.g., United
States v. Nikonova, 480 F.3d 371, 375 (5th Cir. 2007). Under this framework, we
required the party complaining of the calculation error to rebut the presumption
of reasonableness, and we applied a high degree of deference to the district
court’s initial decision. Id. at 375–76. The government contends that this
framework survived Gall. We disagree.
Gall unequivocally established a bifurcated review process: At step one,
the appellate 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, 128 S.Ct. at 597. If the sentence
is determined to be “procedurally sound,” then the appellate court moves on to
step two—reviewing the sentence for substantive reasonableness. Id.; see United
States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (“[We will] only proceed to
review the substantive reasonableness of procedurally sound sentences.”). Our
pre-Gall analysis conflates these two distinct steps. By applying a presumption
of reasonableness to sentences involving acknowledged procedural errors, our
prior approach contravenes Gall’s directive to treat the two steps as sequential,
dispositive inquiries. In most cases, a significant procedural error will prevent
our review of the sentence for substantive reasonableness. See United States v.
Shor, 549 F.3d 1075, 1077 n.1 (6th Cir. 2008) (“[T]he Supreme Court was . . .
quite explicit in Gall that miscalculating the Guidelines range is a ‘significant
procedural error’ that requires reversal.”).
Nonetheless, not every procedural error will require outright reversal.
While Gall itself is silent on this point, we agree with several of our sister
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circuits that certain “harmless” errors do not warrant reversal. See Grissom, 525
F.3d at 696 (“[W]e will remand non-harmless procedural errors . . . .”) (emphasis
added); accord United States v. Langford, 516 F.3d 205, 215–17 (3d Cir. 2008);
United States v. Weems, 517 F.3d 1027, 1030 (8th Cir. 2008); United States v.
Livesay, 525 F.3d 1081, 1092 (11th Cir. 2008). A procedural error during
sentencing is harmless if “the error did not affect the district court’s selection of
the sentence imposed.” See Williams v. United States, 503 U.S. 193, 203 (1992);
see also United States v. Mejia-Huerta, 480 F.3d 713, 720 (5th Cir. 2007). The
burden of establishing that an error is harmless rests on the party seeking to
uphold the sentence: The proponent of the sentence “must point 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 made in arriving
at the defendant’s guideline range.” United States v. Huskey, 137 F.3d 283, 289
(5th Cir. 1998); see also Langford, 516 F.3d at 215–17 (explaining that “the
improper calculation of the Guidelines range can rarely be shown not to affect
the sentence imposed”).
In summary, regardless of whether the selected sentence happens to fall
within the properly calculated Guidelines range, we adhere to the following
review process: We first consider whether the district court committed a
significant procedural error as defined by Gall. See Gall, 128 S.Ct. at 597. If the
court has committed such an error, we must remand unless the proponent of the
sentence establishes that the error “did not affect the district court’s selection of
the sentence imposed.” Williams, 503 U.S. at 203. If we are satisfied that the
error was in fact harmless, we then (and only then) proceed to Gall’s second step
and review the substantive reasonableness of the sentence imposed. See Gall,
128 S.Ct. at 597.
Applying this framework to the case at hand, it is clear that the district
court committed a significant procedural error by calculating Delgado-Martinez’s
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No. 08-50439
Guidelines range based on the improper two-point probation enhancement. See
United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008). (“An error in applying
the guidelines is a significant procedural error that constitutes an abuse of
discretion.”). Thus, we must remand unless the error “did not affect the district
court’s selection of the sentence imposed.” Williams, 503 U.S. at 203.
The government argues that the error was harmless because Delgado-
Martinez’s 30-month sentence fell within both the improperly calculated
Guidelines range (30–37 months) and the properly calculated Guidelines range
absent the probation enhancement (24–30 months). However, the crux of the
harmless-error inquiry is whether the district court would have imposed the
same sentence, not whether the district court could have imposed the same
sentence. See Huskey, 137 F.3d at 289–90. While the fact that the actual
sentence falls within the properly calculated Guidelines range may at times be
relevant to the harmless-error inquiry, it is not dispositive.3 See Langford, 516
F.3d at 216 (“[W]e conclude that such an ‘overlap’ [between the properly and
improperly calculated ranges] does not necessarily render an error in the
Guidelines calculation harmless. Such an overlap, alone, proves too little.”);
accord United States v. Goodman, 519 F.3d 310, 323 (6th Cir. 2008).
Reviewing the record as a whole, we are not convinced that the district
court would have imposed the same sentence absent the Guidelines error. In
fact, the court specifically noted that it found “a fair and reasonable sentence to
be at the bottom of the guidelines, 30 months incarceration.” (Emphasis added).
Thus, it appears that the court consciously selected from the low end of what it
believed to be the available range. There is no indication that the court would
3
Furthermore, we have reversed such “overlap” sentences even under our more-
deferential plain-error review. E.g., United States v. Price, 516 F.3d 285, 289–90 (5th Cir.
2008). Thus, it would be incongruous to treat the overlap as a cure-all in the harmless-error
context.
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have selected the same sentence if the Guidelines range had been properly
calculated at 24–30 months. Under these circumstances, we cannot conclude
that “the district court had [the 30-month] sentence in mind and would have
imposed it, notwithstanding the error made in arriving at the defendant’s
guideline range.” See Huskey, 137 F.3d at 289. Accordingly, we must remand
the case for re-sentencing pursuant to the proper Guidelines range. See Gall,
128 S.Ct. at 597; Huskey, 137 F.3d at 290.
IV
For the foregoing reasons, we VACATE Delgado-Martinez’s 30-month
sentence and REMAND the case for re-sentencing.
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