     Case: 09-50926     Document: 00511627122         Page: 1     Date Filed: 10/07/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          October 7, 2011

                                       No. 09-50926                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

REYNALDO BARRON-MARTINEZ, also known as Martin Sanchez, also
know as Benjamin Navarro-Hernandez, also known as Martin Espinoza, also
know as Manuel Ayala,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1428-1


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Because of two later judicial decisions, the sentence must be vacated and
the case remanded for resentencing.
        Following defendant’s plea of guilty the district court sentenced him to 36
months of imprisonment, which was an upward variance over the Guidelines
because of his under-represented criminal history. In calculating the Guidelines


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 09-50926    Document: 00511627122      Page: 2   Date Filed: 10/07/2011



                                  No. 09-50926

range the court imposed an eight-point enhancement of the offense level due to
the treatment of a second state conviction for possession of a controlled
substance as an aggravated felony under § 2L1.2. Thereafter the Supreme Court
held that the second conviction could be an aggravated felony only if it was
actually a recidivist felony conviction. Carachuri-Rosendo v. Holder, 130 S. Ct.
2577 (2010).
      Because the court must consider the correct Guidelines range before
deciding upon the sentence to impose, the question remains of whether the
court’s error was harmless. After the briefs were filed here, our court held that
“the harmless error doctrine requires the proponent of the sentence to
convincingly demonstrate that the court actually would have followed the very
same reasoning absent the error.” United States v. Ibarra-Luna, 628 F.3d 712,
717 (5th Cir. 2010)(emphasis in original). “On these facts, the government has
not met its burden to convincingly demonstrate that the court would have
imposed the very [same] sentence if it had not made an erroneous calculation.
We must therefore VACATE [the defendant’s] sentence and REMAND to the
district court for resentencing.” Id. at 719.
      SENTENCE VACATED; REMANDED FOR RESENTENCING.




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