     Case: 14-40218      Document: 00513069039         Page: 1    Date Filed: 06/05/2015




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


                                      No. 14-40218                                 FILED
                                                                                June 5, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee

v.

JACOB MATTHEW MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-1381


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jacob Matthew Martinez pleaded guilty to interfering with commerce by
threats or violence in violation of 18 U.S.C. § 1951(a) and was sentenced to 87
months’ imprisonment. Martinez appeals, contending that the district court
reversibly erred when it imposed a four-level offense enhancement to his
sentence pursuant to U.S.S.G. § 2B3.1(b)(2)(D) based on its finding that a
dangerous weapon was “otherwise used” in the offense.                  The government
contends that the district court correctly applied the § 2B3.1(b)(2)(D)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 14-40218

enhancement and, in the alternative, that any error was harmless. 1 For the
following reasons, we VACATE Martinez’s sentence and REMAND for
resentencing.
                                            I.
       On the morning of May 16, 2011, Martinez and three other men robbed
a jewelry store in McAllen, Texas. As the four men approached the store,
Martinez signaled for the others to enter. Martinez then ordered the store’s
employees to get on the ground and acted as a lookout while the other three
men broke into the store’s display cases, removed Rolex watches and diamond
jewelry, placed the watches and jewelry into a duffle bag, and left the store
within two minutes of their entry. To break into the jewelry display cases, one
of the men used a Fubar, a “metal functional utility bar, . . . used for prying,
splitting, board bending and striking jobs.” United States v. Sanchez, No. 14-
40280, 2015 WL 1004384, at *1 (5th Cir. Mar. 9, 2015) (unpublished). On
November 22, 2011, Martinez pleaded guilty alongside his co-defendant,
Miguel Angel Sanchez, to one count of interfering with commerce by threats or
violence in violation of the Hobbs Act, 18 U.S.C. § 1951(a).
       The presentence report (PSR) recommended that Martinez’s offense level
be increased by four levels because a dangerous weapon, the Fubar, was
“otherwise used” in the offense. See § 2B3.1(b)(2)(D). Martinez objected to the
§ 2B3.1(b)(2)(D) enhancement, but the district court overruled his objection.
The district court determined that, with the four-level offense enhancement,



       1  Martinez also appeals his conviction, contending that 18 U.S.C. § 1951(a) is
unconstitutional on its face and as applied to his case. As Martinez correctly concedes,
however, his arguments as to his conviction are foreclosed by circuit precedent and were
raised only to preserve the issue for Supreme Court Review. See United States v. Robinson,
119 F.3d 1205, 1208-15 (5th Cir. 1997); see also United States v. McFarland, 311 F.3d 376
(5th Cir. 2002) (en banc); United States v. Hickman, 179 F.3d 230 (5th Cir. 1999) (en banc).
We therefore affirm his conviction and address only the alleged sentencing error.


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                                    No. 14-40218

Martinez’s advisory Guidelines imprisonment range was 63 to 78 months. The
government requested a within-Guidelines 78-month sentence. The district
court,       however,   concluded   that    Martinez’s    criminal     history    score
underrepresented the seriousness of his criminal history and therefore
upwardly departed to a Guidelines imprisonment range of 70 to 87 months.
See U.S.S.G. § 4A1.3(a) (authorizing district courts to upwardly depart from
the calculated Guidelines range “[i]f reliable information indicates that the
defendant’s criminal history category substantially under-represents the
seriousness of the defendant’s criminal history”).
         Before announcing Martinez’s sentence, the district court asked the
government how Martinez’s involvement in the offense compared with his co-
defendant’s, Sanchez’s, whom the court had, moments earlier, sentenced to 87
months in prison. The government replied that Martinez’s involvement was
“roughly the same” as Sanchez’s. The district court then explained that, in
consideration of Sanchez’s sentence, as well as all the sentencing factors under
18 U.S.C. § 3553(a), it would impose a sentence of 87 months of imprisonment
and three years of supervised release. 2 After announcing its sentence, the
district court stated that if it “committed any error with regards to any
guideline determination, [the court] want[ed] it to be clear that this would still
be the [c]ourt’s sentencing.” Martinez filed a timely notice of appeal.
                                           II.
         We review the district court’s application of the Sentencing Guidelines
de novo and its findings of fact for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Section 2B3.1(b)(2)(D) authorizes
a four-level increase to a defendant’s offense level “if a dangerous weapon was



       Martinez was also ordered to pay a $100 special assessment and restitution in the
         2

amount of $223,627.40, for which he is jointly and severally liable.


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otherwise used.” § 2B3.1(b)(2)(D). As defined in the Guidelines commentary,
the term “‘[o]therwise used’ . . . means that the conduct did not amount to the
discharge of a firearm but was more than brandishing, displaying, or
possessing a firearm or other dangerous weapon.” U.S.S.G. § 1B1.1, comment.
(n.1(I)); see § 2B3.1, comment. (n.1). In comparison, § 2B3.1(b)(2)(E) provides
for a three-level offense increase if a dangerous weapon was “brandished.” The
Guidelines explain that a dangerous weapon is “brandished” if “all or part of
the weapon was displayed, or the presence of the weapon was otherwise made
known to another person, in order to intimidate that person[.]”        § 1B1.1,
comment. (n.1(C)). We have held that “[d]isplaying a weapon without pointing
or targeting should be classified as ‘brandished,’ but pointing the weapon at
any individual or group of individuals in a specific manner should be ‘otherwise
used.’” United States v. Dunigan, 555 F.3d 501, 505 (5th Cir. 2009). Stated
differently, “[t]he threat to the victim must be specific rather than general[]”
to warrant the four-level enhancement for “otherwise us[ing]” a dangerous
weapon under § 2B3.1(b)(2)(D). Id.
      A panel of this court, addressing Martinez’s codefendant’s appeal of his
87-month sentence, recently held that the facts in this case do not support the
district court’s conclusion that any of the co-defendants here “otherwise used”
a dangerous weapon and, therefore, the four-level offense enhancement under
§ 2B3.1(b)(2)(D) was erroneously imposed. See Sanchez, No. 14-40280, 2015
WL 1004384, at *4-5 (unpublished) (vacating and remanding Sanchez’s
sentence after finding that the district court erred in increasing his offense
level under § 2B3.1(b)(2)(D)). We agree with the persuasive reasoning in the
Sanchez opinion that, here,
      no individual verbally threatened to use a weapon against any
      victim. The link between the Fubar and the verbal threat to get
      on the ground was too attenuated and general to warrant the


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      enhancement; Sanchez used the Fubar to smash the display cases
      and [Martinez] gave the verbal order. The district court gave
      weight to a finding that the Fubar’s use was for purposes of
      intimidation, and actually did intimidate the employees. But a
      finding of intimidation, without more, is consistent with a finding
      of brandishment—intimidation is a required element of
      brandishing a weapon.
Sanchez, No. 14-40280, 2015 WL 1004384, at *4. We conclude, as the panel in
Sanchez did, that it was error to impose a four-level enhancement under
§ 2B3.1(b)(2)(D) for “otherwise using” a dangerous weapon because neither
Martinez nor any co-defendant involved in the offense ever used a dangerous
weapon to threaten any victim or individual present during the robbery in a
specific manner.
      Our conclusion that the four-level enhancement under § 2B3.1(b)(2)(D)
was erroneous, however, does not end our inquiry. We need “not vacate and
remand for resentencing, [] if the guidelines calculation error is harmless—
that is the error ‘did not affect the district court’s selection of the sentence
imposed.’” United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012)
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)). “[T]he 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.” United States v. Ibarra-Luna,
628 F.3d 712, 714 (5th Cir. 2010). “This is a heavy burden.” Id. at 717.
      Here, the government contends that any error was harmless because the
district court remarked that, even if it erred in any Guidelines calculation,
“this would still be the [c]ourt’s sentencing.” While ordinarily this type of
statement would support a finding of harmless error, because of the specific
circumstances of the sentencing colloquy in this case, we disagree and conclude
that the government has not met its heavy burden to show that the district

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court would have imposed the same sentence for the same reasons that it did
at the sentencing hearing had it not made the error. See Ibarra-Luna, 628
F.3d at 718; Richardson, 676 F.3d at 511.
      First, the government has not convincingly demonstrated that, absent
the error, the district court would have selected an 87-month sentence. After
erroneously calculating the Guidelines range as 63 to 78 months, the district
court announced that it was upwardly departing to a range of 70 to 87 months,
to sufficiently reflect Martinez’s criminal history.      Before deciding what
sentence to select within that heightened range, the district court expressly
considered the fact that it had just sentenced Sanchez, Martinez’s co-
defendant, to an 87-month sentence. As explained above, a panel of this court
has since vacated Sanchez’s 87-month sentence and has sent his case back to
the district court for resentencing. If Sanchez had not been sentenced to 87
months—which, based on this court’s recent ruling vacating his 87-month
sentence, he may no longer be—the district court may not have chosen an
equivalent 87-month sentence for Martinez, particularly had it first considered
the properly-calculated Guidelines range of 57 to 71 months. The district
court’s remarks at sentencing may demonstrate that, absent the error, the
district court would have nonetheless upwardly departed to a range of 70 to 87
months and selected a sentence within that range.         However, the district
court’s “caveat” that, regardless of any Guidelines error, the sentence would be
the same, does not adequately “explain[] that the court would have reached the
same conclusion” and selected the exact same 87-month sentence for
Martinez—a sentence sixteen months above the top of the properly-calculated
Guidelines range—had Sanchez not already been sentenced to 87 months’
imprisonment. Cf. United States v. Robinson, 741 F.3d 588, 603 (5th Cir.
2014). Accordingly, “[o]n these facts, we are left uncertain as to whether the



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                                 No. 14-40218

district court would have imposed the same [87-month] sentence absent” the
error. United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011).
      Second, even if the Guidelines error “may not have affected the precise
length of the sentence, . . . an error in selecting a non-Guidelines sentence may
not be dismissed as harmless unless the proponent shows ‘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.’” Johnson, 648 F.3d at 279-80 (5th Cir. 2011) (quoting Ibarra-
Luna, 628 F.3d at 714) (emphasis in original). One of the district court’s
express reasons for imposing the 87-month sentence—parity with Sanchez’s
sentence—is no longer a viable basis for Martinez’s sentence. This changed
circumstance precludes us from concluding that, absent the error, the district
could would have imposed the same 87-month sentence for the same reasons it
gave at the prior sentencing. Accord United States v. Padron, 425 F. App’x
290, 291 (5th Cir. 2011) (unpublished) (concluding that “[a]lthough the district
court stated that the 41-month sentence was reasonable both with and without
the Guidelines, we conclude that the Government has not convincingly
demonstrated that, if the district court had considered the correct guidelines
range, it would have relied on the same reasons to impose a 41-month
sentence.” (citing Ibarra-Luna, 628 F.3d at 718-19)); United States v.
Rodriguez-Baza, 481 F. App’x 105, 107 (5th Cir. 2011) (unpublished) (same).
      We therefore “remand this case for resentencing [] so that the able
district judge may be entrusted, in his sound discretion, to select an
appropriate sentence in light of our holding.” Johnson, 648 F.3d at 280. “‘[W]e
recognize the distinct possibility that the district court might again
impose . . . the same [87-month] sentence it originally imposed.’” Id. (quoting
United States v. Tello, 9 F.3d 1119, 1131 (5th Cir. 1993)). “And should it do so,



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we are confident it will be on a record from which the uncertainties that crept
in here have been vanquished.” Id.
                                     III.
      For the above-stated reasons, we AFFIRM Martinez’s conviction, but
VACATE Martinez’s sentence and REMAND to the district court for
resentencing.




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