U.S. v. Ibarra-Luna

• Decision Date: 22 December 2010
• Docket Number: No. 09-40768,09-40768
• Citation: 628 F.3d 712
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jaime IBARRA-LUNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

628 F.3d 712 UNITED STATES of America, Plaintiff-Appellee, v. Jaime IBARRA-LUNA, Defendant-Appellant. No. 09-40768. United States Court of Appeals, Fifth Circuit. Dec. 22, 2010.

Appeal from the United States District Court for the Southern District of Texas.

Julia Bowen Stern, James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Molly Estelle Odom, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Before HIGGINBOTHAM, CLEMENT and OWEN, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In United States v. Morales-Sanchez, we held that a district court must always " correctly calculat[e] the applicable Guidelines range" before imposing a sentence.¹ Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencingregime of Booker and progeny, ² the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing. On the facts before us, we conclude that this high hurdle has not been cleared and remand for resentencing.

I

Defendant-appellant Jaime Ibarra-Luna ("Ibarra") pleaded guilty to illegally reentering the United States after having previously been deported.³ Ibarra was born in Mexico in 1973 and first entered the United States illegally when he was a teenager. In 2003, he pleaded guilty to a Texas state felony offense of delivery of cocaine and was subsequently deported to Mexico. Five days after being deported, Ibarra reentered the country without permission and returned to his family in Texas.

In April 2008, Ibarra was arrested again and charged with murder. Although the record is sparse on details, it appears that Ibarra and a companion were involved in a high-speed car chase in which Ibarra fired a number of shots at another vehicle, one of which struck and killed the driver. Ibarra pleaded guilty and received a 22-year sentence, which he is currently serving in state custody.⁴

After the state proceedings were completed, Ibarra pleaded guilty in this case. Although Ibarra's illegal reentry is a separate crime from the murder and the past drug offense, each of the prior convictions raised significant issues bearing on his sentence.

A

The first disputed issue at Ibarra's sentencing hearing concerned the effect of his 2003 drug conviction, which the criminal information and plea agreement identify as "delivery of cocaine, less than 1 gram."⁵ Relying on a police report alleging that Ibarra sold a quantity of cocaine to an undercover officer, the Presentence Report (PSR) recommended that Ibarra receive the 12-level sentence enhancement for a prior felony drug trafficking offense. ⁶

The district court rejected this recommendation because, as we have previously held, a conviction for delivery of a controlled substance did not qualify as a drug trafficking offense under the Guidelines in effect at the time of Ibarra's crime. Applying the categorical approach of Taylor v. United States,⁷ we look only to the elements of the prior offense, the charging document, and the jury instructions or plea agreement.⁸ We thus consider onlythose facts that were essential to the conviction; we may not assume the truth of any other facts, such as allegations in the police report⁹ or any description given in the PSR.¹⁰ Under the Guidelines in effect during Ibarra's crime, arrest, and indictment, a "felony drug trafficking offense" required the defendant to possess the drugs or to cause them to be transferred.¹¹ But Texas law defines delivery of a controlled substance to include "offer[s] to sell," which reaches offers where the defendant is not yet in possession of the drugs and the transaction is never consummated.¹² That is, "the [Texas] language encompasses both conduct that does constitute a drug trafficking offense (transferring cocaine) and conduct that does not (offering to sell cocaine)."¹³ Consequently, Ibarra's agreement to plead guilty to a charge of "delivery of cocaine" does not establish the facts necessary to impose a drug trafficking enhancement under the applicable Guidelines.¹⁴

We pause to note that the Guidelines have since been amended to add "offers to sell" to the definition of a felony drug trafficking offense, closing this apparent loophole.¹⁵ The government did not cross-appeal Ibarra's sentence, and so we do not consider whether the amended Guidelines would call for a longer sentence or whether the new Guidelines could be applied retroactively to Ibarra's conduct.¹⁶

After determining that Ibarra's drug conviction did not support the twelve-level enhancement, the district court proceeded to consider two alternatives. The government argued that the 2003 conviction qualifies as "an aggravated felony" and is therefore subject to an eight-level enhancement. ¹⁷ Ibarra's counsel disagreed and maintained that the drug conviction falls into the residual category for "any other felony," receiving only a four-level enhancement.¹⁸ The district court applied the eight-level enhancement. After sentencing adjustments not at issue here, the court calculated a Guidelines range of 12 to 18 months.

The government now concedes that applying the eight-level enhancement was error, and Ibarra should instead have receivedonly a four-level enhancement. This was error because an "aggravated felony" must be punishable as a felony under the Controlled Substances Act.¹⁹ The government concedes that a mere offer to sell, without evidence of possession or transfer, is tantamount to solicitation and is not proscribed by the Controlled Substances Act.²⁰ The correct Guidelines range was 6 to 12 months, not 12 to 18 months.

B

The other significant dispute at Ibarra's sentencing hearing concerned his recent murder conviction. Even before it finished calculating Ibarra's Guidelines range, the district court advised the parties that it thought the state murder sentence was too lenient and that it planned to compensate by imposing an above-Guidelines sentence for the federal immigration charges.

The district court understood the murder to involve "chasing some guy down the highway ... shooting at—out the window until he kills a guy in the middle of the road." Ibarra's attorney did not dispute this characterization, instead asking for leniency based on personal factors. Although Ibarra received a 22-year state sentence, the district court explained that it did not "really know how much time he'll do" because Texas allows some offenders to be released after serving as little as half of the assigned sentence. The court thus surmised that Ibarra "might serve [only] 11 years for killing this guy."

Viewed against this backdrop, the district court determined that a sentence in the 12 to 18 month range—what it mistakenly believed to be the applicable Guidelines range—would not satisfy the Section 3553(a) factors.²¹ The court announced that, in order "to be certain that Mr. Ibarra doesn't return to society in this [c]ountry," a longer sentence would be necessary. Stating that it had considered Ibarra's "convict[ion] of a murder of this type, degree, and the circumstances behind it, as well as just the offense itself," the court imposed a 36-month sentence and ordered that it run consecutive to the state murder sentence. The court gave no further indication of precisely how it arrived at 36 months as the appropriate term of imprisonment.

II

We have applied the harmless error doctrine in several post- Booker cases.²² In each, the district court considered the correct Guidelines range and rejected it on Section 3553(a) grounds.²³ We have nottreated whether an error in calculating the sentence may be harmless. We turn to the principles of Booker and progeny.

A

It is established that a district court must consider the applicable Guidelines range. Section 3553(a) lists the Guidelines range as one of seven factors that the court must consider when deciding what sentence to impose.²⁴ Indeed, the Supreme Court has instructed that, "as a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark" in every case.²⁵

For similar reasons, when a district court sentences outside the Guidelines range, it must explain on the record why the range would not serve the goals listed in Section 3553(a).²⁶ This explanation is necessary "to allow for meaningful appellate review and to promote the perception of fair sentencing."²⁷ That is, review of sentencing decisions under an abuse-of-discretion standard requires that the district court "clearly articulate" how the Section 3553(a) factors apply to the facts of a particular case, because "[o]nly then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent."²⁸

Treating the Guidelines as mandatory or failing to consider the Guidelines at all is reversible error. Without attempting to identify the applicable Guidelines range, a district court cannot meet its obligation to explain why a sentence in that range would not be adequate. We cannot find a frustration of this core statutory command to be harmless.

B

Elaborating on these standards in Gall, the Supreme Court observed that a district court commits procedural error by "failing to calculate (or improperly calculating) the Guidelines range."²⁹ In referring to both failure to calculate the Guidelines range and improperly calculating that range as a single form of procedural error, the Court thought them problematic for the same reasons.

As a result, an incorrect Guidelines calculation will usually invalidate the sentence, even when the district court chose to impose a sentence outside the Guidelines range. Although it may well be that the same explanation the...