     Case: 15-40246   Document: 00513451692    Page: 1   Date Filed: 04/05/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                No. 15-40246                            FILED
                                                                     April 5, 2016

UNITED STATES OF AMERICA,
                                                                   Lyle W. Cayce
                                                                        Clerk

                                          Plaintiff - Appellee
v.

PEDRO MARTINEZ-ROMERO,
also known as Pedro S. Martinez Romer,
also known as Pedro M. Romero,

                                          Defendant - Appellant




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


Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      This is a direct criminal appeal in which Appellant Pedro Martinez-
Romero (“Martinez”) challenges only his sentence. Martinez contends that the
district court erred in holding that his prior conviction for attempted
kidnapping constituted a crime of violence pursuant to the Sentencing
Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). We agree and hold that the error was
not harmless.     Thus, we vacate his sentence and remand for further
proceedings.
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                                  No. 15-40246
      I.    BACKGROUND

      Martinez pleaded guilty to one count of being found in the United States
without the consent of the Attorney General after having been deported in
violation of 8 U.S.C. § 1326. Prior to the sentencing hearing, the probation
officer recommended finding that Martinez’s prior Florida conviction for
attempted kidnapping constituted a crime of violence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), which added 16 levels to Martinez’s offense level. Martinez
objected to the characterization of his prior conviction as a crime of violence,
arguing that his prior conviction was not an enumerated offense and that it
did not have as an element the use of force. At the sentencing hearing, the
district court overruled his objections and held that his prior Florida conviction
for attempted kidnapping constituted a crime of violence. As a result, the court
increased Martinez’s offense level by 16.         § 2L1.2(b)(1)(A)(ii).   After an
adjustment of 3 levels for acceptance of responsibility, the total offense level
was 21. Martinez’s criminal history category was III, resulting in a guideline
range for imprisonment of 46 to 57 months. The court imposed a sentence of
46 months. Martinez now appeals.
      II.   ANALYSIS

            A. Standard of Review

      Martinez contends that the district court erred in ruling that his prior
conviction for attempted kidnapping in Florida is a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). This court’s review of a district court’s sentencing
determination is completed in two steps. United States v. Robinson, 741 F.3d
588, 598 (5th Cir. 2014). In applying this two-step review, this court reviews
the district court’s interpretation of the Sentencing Guidelines de novo, and its
factual findings for clear error. Id. at 598–99. First, this court must determine
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                                     No. 15-40246
whether the district court committed a procedural error. Gall v. United States,
552 U.S. 38, 51 (2007). Second, if the there is no procedural error or if the
procedural     error    is   harmless,    this       court   reviews   the   substantive
reasonableness of the sentence for abuse of discretion. Robinson, 741 F.3d at
598.
              B. Crime of Violence

        The Sentencing Guidelines define a “crime of violence” to include several
enumerated offenses, such as murder and kidnapping, and “any other offense
under federal, state, or local law that has as an element the use, attempted
use, or threatened use of physical force against the person of another.” § 2L1.2
cmt. n.1(B)(iii). Martinez’s prior conviction was attempted kidnapping; thus,
the first question is whether his Florida kidnapping conviction constitutes an
enumerated offense of kidnapping. 1 Although Florida law labels Martinez’s
prior conviction a kidnapping, “[s]tate-law labels do not control this inquiry
because the [crime-of-violence] adjustment incorporates crimes with certain
elements, not crimes that happen to have the same label under state law.”
United States v. Ramirez, 557 F.3d 200, 205 (5th Cir. 2009).
                    1. Enumerated Offense
        “In determining whether the [state] crime at issue here is the
enumerated offense of ‘kidnapping,’ we look to the ‘generic, contemporary’
meaning of kidnapping, employing a ‘common sense approach’ that looks to the
Model Penal Code, the LaFave and Scott treatises, modern state codes, and
dictionary definitions.” United States v. Iniguez–Barba, 485 F.3d 790, 791 (5th


        Martinez recognizes that Florida’s criminal attempt statute is not broader than the
        1

generic definition of “attempt.” See Garcia-Figueroa, 753 F.3d at 186–89. He therefore
makes no challenge to the attempt statute.

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                                       No. 15-40246
Cir. 2007). “When comparing the state conviction with the generic,
contemporary meaning of the crime, we examine the elements of the statute of
conviction rather than the specifics of the defendant’s conduct. We look only to
the particular subdivision of the statute under which the defendant was
convicted.” United States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir. 2006)
(citing United States v. Fernandez–Cusco, 447 F.3d 382, 385 (5th Cir. 2006)).
       Here, the parties agree that Martinez was convicted under Section
787.01(1)(a)(3) of the Florida Statute. 2 The state court information tracked the
language of the statute, charging that Martinez “did attempt to forcibly,
secretly, or by threat, confine, abduct, or imprison [the victim] against her will,
without lawful authority, with the intent to inflict bodily harm upon or to
terrorize [her] in violation of Florida Statute 787.01(1) and 777.04(1).” 3
Although this court has not determined whether this Florida kidnapping
statute is an enumerated offense, it has decided whether several other states’
kidnapping statutes qualified as an enumerated offense under the instant
sentencing guideline enhancement.                For example, this court held that
Tennessee’s kidnapping statute fell within the generic, contemporary meaning
of the term “kidnapping.” United States v. Gonzalez-Ramirez, 477 F.3d 310,
318–19 (5th Cir. 2007).         The Tennessee kidnapping statute contained the
following elements:        (1) knowing removal or confinement; (2) substantial
interference with the victim’s liberty; (3) force, threat, or fraud; and (4) a
substantial risk of bodily injury or confinement as a condition of involuntary
servitude.     Id.    In making its determination that the statute was an


       2 Section 787.01(1)(a)(3) provides that the “term ‘kidnapping’ means forcibly, secretly,
or by threat confining, abducting, or imprisoning another person against her or his will and
without lawful authority, with intent to: . . . [i]nflict bodily harm upon or to terrorize the
victim or another person.”
       3 Section 777.04(1) is Florida’s criminal attempt statute.

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                                  No. 15-40246
enumerated offense, the court looked to the following definition of kidnapping
in Section 212.1 of the Model Penal Code:
            [U]nlawfully remov[ing] another from his place of residence
      or business, or a substantial distance from the vicinity where he is
      found, or . . . unlawfully confin[ing] another for a substantial
      period in a place of isolation, with any of the following purposes:

                  (a) to hold for ransom or reward, or as a
                      shield or hostage; or
                  (b) to facilitate commission of any felony
                      or flight thereafter; or
                  (c) to inflict bodily injury on or to terrorize
                      the victim or another; or
                  (d) to interfere with the performance of
                      any governmental or political function.

      . . . A removal or confinement is unlawful within the meaning of this
      Section if it is accomplished by force, threat or deception . . . .

Id. at 316.
      This court noted that “kidnapping does not occur under the Model Penal
Code absent one of the specifically enumerated purposes.” Id. The Tennessee
kidnapping statute did not require a specified nefarious purpose, and thus,
Gonzalez-Ramirez argued that the statute failed to qualify as an enumerated
offense under the instant sentencing guideline. Id. at 317. This court rejected
that argument, explaining that a majority of states do not require a specified
purpose requirement in their kidnapping statutes.            Id. at 317–18.    The
Tennessee statute’s required aggravating factors (use of force, threat, or fraud)
are comparable to the essential elements of the Model Penal Code’s definition
of kidnapping. Id. at 317. Moreover, the court deemed it “significant that
Tennessee requires the use of force, threat or fraud” in addition to the
“aggravating elements of substantial risk of injury or confinement as a

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                                  No. 15-40246
condition of involuntary servitude.” Id. at 319. Indeed, the court opined that
the Tennessee kidnapping statute “is at least as restrictive, if not more
restrictive, than a majority of state kidnapping statutes.”            Id. at 319.
Accordingly, this court concluded that “Tennessee’s statute does not sweep
more broadly than the generic, contemporary meaning of the term
‘kidnapping.’” Id. at 320.
      After Gonzalez-Ramirez, the four elements in the Tennessee kidnapping
statute “became the standard in this circuit for comparing other states’ laws.”
United States v. Benitez-Osorio, 514 F. App’x 451, 453 (5th Cir. 2013). In other
words, for purposes of determining whether a state’s kidnapping statute
constituted an enumerated offense under this guideline, the generic,
contemporary offense of kidnapping included the following elements:              (1)
knowing confinement; (2) substantial interference with the victim’s liberty;
(3) use of force, threat, or fraud; and (4) a substantial risk of bodily injury. Id.
      Additionally, this court has addressed whether New York’s second-
degree kidnapping statute qualified as an enumerated offense. United States
v. Iniguez-Barba, 485 F.3d 790 (5th Cir. 2007).          The New York statute
contained the first three elements of the generic kidnapping statute, but it did
not have the fourth element of a substantial risk of bodily injury. Id. at 792.
We concluded that having the first three elements was sufficient to qualify as
an enumerated offense, explaining that we had noted in Gonzalez-Ramirez
that the Tennessee statute’s four elements were “at least as restrictive, if not
more restrictive, than a majority of state kidnapping statutes.” Id. We also
pointed out that “commentary to the New York kidnapping and unlawful
restraint scheme shows that second-degree kidnapping was not meant to be a
significantly less serious offense than first-degree kidnapping, such that first-
degree kidnapping in New York would be the only ‘kidnapping’ that’s a crime
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                                     No. 15-40246
of violence.” Id. 4 Accordingly, a kidnapping statute that has only the first
three elements of the generic statute qualifies as an enumerated offense.
      In United States v. Cervantes-Blanco, this court held that Colorado’s
second degree kidnapping statute did not qualify as an enumerated offense
because it required at most only two of the four elements set forth in Gonzalez-
Ramirez. 504 F.3d 576, 586–87 (5th Cir. 2007). The Colorado statute reads as
follows: “Any person who knowingly seizes and carries any person from one
place to another, without his consent and without lawful justification, commits
second degree kidnapping.” Colo. Rev. Stat. § 18-3-302(1). This court stated
that the statute contained the first element of knowing removal or confinement
and “possibly” the third element of force, threat, or fraud; however, it lacked
the second and fourth elements: (2) substantial interference with the victim’s
liberty; and (4) a substantial risk of bodily injury. Id. at 586. This court
explained that “[w]hile Gonzalez-Ramirez did not hold that any particular
elements are essential, the court did emphasize that where the specified
purposes of the MPC kidnapping definition are lacking, some aggravating
elements are necessary to bring a statute closer to the MPC definition of
kidnapping.” Id. The court held that a kidnapping statute that “lacks the
specified purposes of the MPC definition and other aggravating elements
identified in Gonzalez-Ramirez and Iniguez-Barba, and also lacks an explicit




      4  Additionally, the court noted that it had recently held that Texas’s kidnapping
statute, which like New York’s statute does not require a risk of injury, qualified as an
enumerated offense. Id. at 793 (citing United States v. Garcia-Gonzalez, 168 F. App’x 564,
565 (5th Cir. 2006)). The court recognized that the case involving the Texas statute was
unpublished and reviewed only for plain error. Id. Nonetheless, the court stated that the
unpublished opinion was consistent with its conclusion in the New York case. Id.

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                                  No. 15-40246
‘force or fraud’ requirement, does not qualify as the enumerated offense of
‘kidnapping.’” Id. at 587 (emphasis added).
      In United States v. Moreno-Florean, this court held that California’s
kidnapping statute did not qualify as an enumerated offense because it did not
require proof of two of the elements, substantial interference with the victim’s
liberty, and risk of bodily injury. 542 F.3d 445 at 453–56 (5th Cir. 2008). The
California statute did contain the first and third elements identified in
Gonzalez-Ramirez: (1) knowing removal and confinement; and (3) force, threat,
or fraud. Id. at 454. Unlike the Colorado statute in Cervantes-Blanco, the
California statute did contain an explicit “force or fraud” element.           Id.
Nonetheless, we explained that “[i]f these two elements were deemed sufficient
to constitute the enumerated offense of kidnapping, then dissimilar state
kidnapping offenses would be treated identically for purposes of the [crime of
violence] enhancement,” which “would be inconsistent with the Sentencing
Guideline’s goals of uniformity and predictability.”        Id. “A two-element
definition of kidnapping would sweep more broadly than the generic,
contemporary meaning of the crime.” Id. In order to qualify as an enumerated
offense of kidnapping, the statute must contain “[a]dditional aggravating
elements, such as the second and fourth elements identified in Gonzalez-
Ramirez, or the specified purpose requirements of the MPC definition.” Id.;
accord United States v. Najera-Mendoza, 683 F.3d 627, 630 (5th Cir. 2012)
(holding that the Oklahoma statute, like the California statute, did not qualify
as an enumerated offense because it lacked the elements of substantial
interference with the victim’s liberty and risk of bodily injury).
      As previously set forth, the Florida statute at issue provides that the
“term ‘kidnapping’ means forcibly, secretly, or by threat confining, abducting,
or imprisoning another person against her or his will and without lawful
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                                     No. 15-40246
authority, with intent to: . . . [i]nflict bodily harm upon or to terrorize the
victim or another person.” § 787.01(1)(a)(3). 5        The statute thus contains the
knowing confinement element of the generic kidnapping offense and one of the
specifically enumerated purposes set forth in the Model Penal Code—intent to
inflict bodily harm or terrorize the victim.
      However, we conclude that the statute does not have the element of
substantial interference with the victim’s liberty. The text of the Florida
statute does not include any reference to substantial interference with the
victim’s liberty. Additionally, Florida’s standard jury instructions provide that
the confinement must not be slight or inconsequential only when the nefarious
purpose alleged is having the intent to commit another felony. In re Std. Jury
Instructions, 167 So. 3d 443, 444 (Fla. 2015). Because a different nefarious
purpose was charged in the instant case, that instruction does not apply. See
Rodriguez v. State, 147 So. 3d 1066, 1070 (Fla. 3d DCA 2014) (explaining that
the “substantiality of confinement factor . . . is germane only when the charge
of kidnapping is brought under subsection [§787.01(1)](a)2, where it is alleged
that the confinement was with the specific intent to commit or facilitate the
commission of another felony”).           Thus, under Florida law, the instant
kidnapping statute does not require substantial interference with the victim’s
liberty.
      Further, we conclude that the statute does not require that the
confinement or abduction of the victim to be achieved by the use of force,
threats, or fraud. The statute expressly provides that the abduction may be
accomplished “secretly.” In Robinson v. State, the Florida Court of Appeals



      5 “In Florida, the crime of kidnapping requires a specific intent on the part of the
defendant.” Delgado v. State, 71 So. 3d 54, 59 (Fla. 2011).
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                                 No. 15-40246
upheld a kidnapping conviction in which it found no physical force or threat
was used to transport the kidnap victim. 462 So. 2d 471, 476 (Fla. 1 DCA
1984). In that case, the victim was stranded when her vehicle became stuck
on the railroad tracks. Id. at 473. As she was walking along the road, Robinson
drove up to her and offered his help. Id. She accepted his offer and entered
his vehicle. Id. He drove the victim to an unlit area and sexually assaulted
her. Id.   On appeal, Robinson argued the evidence was insufficient because
there was no evidence of any force or threat that was not part of the sexual
assault. Id. at 475–76. The court of appeals stated that the transportation of
the victim was not achieved by physical force or threat.            Id. at 476.
Nonetheless, the court upheld the kidnapping conviction because the jury could
find from the victim’s testimony that she was unaware of where Robinson was
taking her and that the location was isolated such that the victim could not
contact a member of the public. Id. The court held that this conduct “was
tantamount to ‘secretly’ abducting and confining [the victim] and was legally
sufficient to prove the kidnapping charge.” Id. The Florida kidnapping statute
therefore may be violated by secretly abducting the victim without the use of
force, threat, or fraud.
      Nonetheless, the government contends that the Florida kidnapping
statute comports with the generic meaning of “kidnapping” because it requires
that the offense be committed with one of the nefarious purposes enumerated
in the Model Penal Code’s definition of “kidnapping.” However, a comparison
of the instant statute to the Model Penal Code reveals that it only has two of
the four requirements.       The Model Penal Code requires (1) unlawful
confinement; (2) for a substantial period; (3) with the intent to inflict bodily
injury or to terrorize the victim; and (4) the removal or confinement must be
accomplished by force, threat or deception. Model Penal Code § 212.1; see
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                                  No. 15-40246
supra at p.4–5; Gonzalez-Ramirez, 477 F.3d at 316.          Because the instant
statute only contains two of the four requirements (the first and the third) in
the Model Penal Code, the statute does not fall within that definition.
Previously, this court has held that a statute did not qualify as an enumerated
offense if it only contained two of the four elements of the generic kidnapping
offense. Cf. Moreno-Florean, 542 F.3d at 454 (“A two-element definition of
kidnapping would sweep more broadly than the generic, contemporary
meaning of the crime.”); accord Najera-Mendoza, 683 F.3d at 630. Thus, we
hold that the Florida statute does not qualify as an enumerated offense of
kidnapping.
                  2.     Use of Force
      Although the statute does not qualify as an enumerated offense,
alternatively, the statute could qualify as a crime of violence if it has as an
element the use, attempted use, or threatened use of physical force.
§ 2L1.2(b)(1)(A)(ii). As previously discussed, Florida’s kidnapping statute can
be violated without the use of force. Robinson, 462 So. 2d at 476; see also
Bishop v. State, 46 So. 3d 75, 78 (Fla. Dist. Ct. App. 2010) (applying Robinson’s
holding in the context of the statute prohibiting kidnapping of a child under
13). Thus, Martinez’s kidnapping conviction does not qualify as a crime of
violence under § 2L1.2(b)(1)(A)(ii).
                  3. Harmless Error
      Having determined that the attempted kidnapping conviction does not
constitute a crime of violence under the applicable guideline, we must now
determine whether this procedural error is harmless. Here, there is no record
evidence that the district court considered the lower, correctly calculated
guideline range without the enhancement for the crime of violence.
Nevertheless, even when a court does not consider the proper sentencing
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                                 No. 15-40246
range, “an error in the guidelines calculation can still be considered harmless.”
United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012). First, the
government must compellingly prove that the district court would have
imposed a sentence outside the properly calculated sentencing range for the
same reasons it provided at the sentencing hearing. United States v. Ibarra-
Luna, 628 F.3d 712, 718–19 (5th Cir. 2010). Second, the government must
demonstrate that the “sentence the district court imposed was not influenced
in any way by the erroneous Guidelines calculation.” Id. at 719. “This is a
heavy burden.” Id. at 717.
      Martinez responds that without the improper 16-level enhancement,
he—at most—would have had an 8-level enhancement for an aggravated felony
under § 2L1.2(b)(1)(C), which would have resulted in a guideline range of 18 to
24 months of imprisonment. The improperly calculated guideline range was
46-57 months. Clearly, Martinez’s sentence of 46 months is not within the
properly calculated guidelines range.
      We now turn to the district court’s statements on the record at the
sentencing hearing. The court stated three times that even if the 16-level
enhancement for the attempted kidnapping was incorrect, it would
nonetheless impose the same 46-month sentence. The court referenced the
PSR and pointed out that within the span of a few months Martinez had been
convicted of similar crimes of battery in Florida on two occasions. The court
further remarked that the later battery case also involved felony crimes of
aggravated stalking and attempted kidnapping. The court noted that the
kidnapping victim was a minor. The court also noted that, in between those
two occasions, he was convicted of breaching the peace.          The court told
Martinez that it found his conduct in the United States “very disturbing.”


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                                    No. 15-40246
      The court also referenced the factors under 18 U.S.C. § 3553(a), and
stated that Martinez’s conduct was a “danger to the community and it’s
conduct that under 3553(a) we need to protect the community from. We also
need to promote respect for the laws of this country and we need to deter you
from returning.” 6    We are persuaded that the record demonstrates that the
district court would have imposed a sentence outside the properly calculated
sentencing range for the same reasons it provided at the sentencing hearing.
However, that is not the end of our inquiry.
      As set forth above, the government must also demonstrate that
Martinez’s 46-month sentence “was not influenced in any way by the erroneous
Guidelines calculation.” Ibarra-Luna, 628 F.3d at 719. As Martinez correctly
points out, his sentence of 46 months coincides with the lowest end of the
improperly calculated guideline range.             Thus, he argues that the error
influenced the district court’s determination of his sentence.                There is
persuasive, albeit unpublished, authority for this proposition.             See United
States v. Cardenas, 598 F. App’x 265, 269 (5th Cir. 2015) (holding that an error
was not harmless when the district court chose the lowest end of the improper


      6    Section 3553(a) provides that the when the court is determining a sentence, it
should consider:
       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant;
       (2) the need for the sentence imposed--
               (A) to reflect the seriousness of the offense, to promote
               respect for the law, and to provide just punishment for
               the offense;
               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the
               defendant; and
               (D) to provide the defendant with needed educational or
               vocational training, medical care, or other correctional
               treatment in the most effective manner.

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                                 No. 15-40246
sentencing range after stating that “even if the Court isn’t correct, the Court
believes it is necessary to sentence at this very high range”); United States v.
Vasquez-Tovar, 420 F. App’s 383, 384 (5th Cir. 2011) (explaining that the
sentencing “court imposed a sentence at the bottom of the guidelines range
that resulted from the 16-level enhancement, which suggests that the
guidelines error did affect the sentence in some way”). We agree with these
unpublished opinions and conclude that the district court’s selection of the
bottom of the incorrect guideline range indicates that the improper guideline
calculation influenced the sentence.
      Additionally, the court expressly stated that Martinez’s prior conduct
was “sufficient to justify a sentence within this range of 46-57 months.” The
court’s remark constitutes evidence that the improper guideline range
influenced the court’s selection of the sentence.     Indeed, given the court’s
explicit attempt to justify the precise range that we have already concluded
was improperly calculated, we have difficulty seeing how the government could
meet its burden of showing that the erroneous calculation played no part in
the court’s decision. Just as we refused to chalk up a sentence at the low end
of an erroneously calculated range to “coincidence” in Cardenas, 598 F. App’x
at 270, we think it is a stretch to say that the court’s choice of the same
parameters as the improperly calculated guidelines range in this case was
mere serendipity.    While the court expressed a multitude of reasons for
imposing a sentence above the properly calculated range, we can find no
indication that the court’s decision to select the exact low and high ends of the
improper range was independent of the erroneous calculation that called the
court’s attention to that range in the first instance. As such, in light of the
court’s choosing the bottom end of the incorrect guideline range and the court’s
comment that Martinez’s prior conduct justified a sentence within the incorrect
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                                    No. 15-40246
range of 46-57 months, we remain unpersuaded that the 46-month sentence
the district court imposed was not influenced in any way by the erroneous
guidelines calculation. Ibarra-Luna, 628 F.3d at 719. 7 On this record, the
government cannot satisfy its heavy burden, and thus, the sentencing error is
not harmless.
      III.   CONCLUSION
      For the above reasons, we VACATE Martinez’s sentence and REMAND
for resentencing consistent with this opinion.




      7 Because the procedural error is not harmless, we do not consider the substantive
reasonableness of the sentence.
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