                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 5, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 07-2086
 MAGDALENO DE JESUS-GOMEZ,                       (D.C. No. CR-05-2198-WPJ)
                                                       (D. New Mexico)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Magdaleno De Jesus-Gomez appeals his sentence of forty-six months’

imprisonment for illegally reentering the United States after having been


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
convicted of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2),

and (b)(2). The sentence was at the bottom of the range calculated under the

United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). De Jesus-

Gomez argues that the district court erred in applying a presumption of

reasonableness to the sentence calculated under the Guidelines. He also contends

that his sentence was substantively unreasonable in light of the factors listed in 18

U.S.C. § 3553(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and

remand with directions to vacate De Jesus-Gomez’s sentence and resentence.

                                          I.

      De Jesus-Gomez is thirty-nine years old and a citizen of Mexico. In 1996,

he pled guilty in Colorado state court to sexual assault on a child and was

sentenced to eight years in prison. After serving his sentence, De Jesus-Gomez

was deported to Mexico.

      On March 31, 2005, United States Border Patrol agents apprehended De

Jesus-Gomez near Columbus, New Mexico. He subsequently pled guilty to

reentry of a deported alien previously convicted of an aggravated felony, in

violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). The probation office then

prepared a presentence report in advance of sentencing. It recommended a base

offense level of eight, pursuant to U.S.S.G. § 2L1.2(a), as well as a sixteen-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because of his previous conviction

for sexual assault on a child, which the presentence report concluded was “a

                                          2
crime of violence.” It also recommended a three-level reduction for acceptance

of responsibility, pursuant to U.S.S.G. § 3E1.1. After these adjustments, De

Jesus-Gomez’s final offense level was twenty-one, which, when combined with a

criminal history category of III, resulted in a Guidelines sentencing range of

forty-six to fifty-seven months’ imprisonment. See U.S.S.G. § 4A1.1; id. ch. 5,

pt. A. 1

           On February 8, 2007, De Jesus-Gomez filed a sentencing memorandum, in

which he requested a sentence of time served. 2 He explained that he fled southern

Mexico because of a contentious land dispute that had resulted in threats to his

life, and he fled to the United States to avoid the poverty in northern Mexico.

The government filed a response on February 12, 2007, arguing that De Jesus-

Gomez’s circumstances did not merit a departure or variance, and urging the

district court to adhere to the Guidelines range. In its argument, the government

contended that “the applicable guideline range has a presumption of

reasonableness for the district court, and is not just an appellate review standard.”

Government Response at 2. On appeal, the government admits that its argument

was incorrect.

           At the sentencing hearing on March 6, 2007, the district court adopted the

           1
        De Jesus-Gomez conceded at the sentencing hearing—and does not
contest on appeal—that this was the proper calculation under the Guidelines.
           2
       By the time of the sentencing hearing, De Jesus-Gomez had served
approximately twenty-four months’ imprisonment.

                                             3
presentence report without change. The district court found no basis for a

departure under the Guidelines, or a variance under the factors listed in 18 U.S.C.

§ 3553(a). The district court stated that “a sentence within a correctly calculated

guideline range is a presumptively reasonable sentence,” and that “[a] defendant

may rebut the presumption of reasonableness by showing that the sentence is

unreasonable when viewed against the factors delineated in 18 U.S.C. 3553(a).”

Sentencing Transcript at 11. In analyzing De Jesus-Gomez’s sentence under

those factors, the court explained that, under § 3553(a)(6), “the guideline sentence

. . . avoids unwarranted sentencing disparities among defendants with similar

records.” Id. Under § 3553(a)(1), moreover, the conviction for sexual assault on

a child was “a serious offense” and “was the reason for the 16-level increase.” Id.

at 12. Also, under § 3553(a)(2), the court concluded:

      So the guideline sentence in this case, in my view, correctly reflects
      the seriousness of the offense; that is, the illegal reentry into this
      country after the defendant’s prior deportation for an aggravated
      felony offense. The guideline sentence also will promote respect for
      the law and provide just punishment for the offense. The guideline
      sentence in this case, I will find, affords adequate deterrence to
      criminal conduct and will also protect the public from further crimes
      of the defendant.

Id. at 13. As for the problems De Jesus-Gomez faced in Mexico, the district court

“simply [did not] consider that a basis for granting a sentencing variance under

the sentencing guidelines.” Id. Finally, the district court explained that “the

presumption of reasonableness has not been overcome, and I will find that the


                                          4
guideline sentence in this case is a reasonable sentence taking into account the

sentencing factors of 18 U.S.C. 3553(a).” Id. The court denied De Jesus-

Gomez’s request for a variance and sentenced him to forty-six months’

imprisonment.

                                          II.

      On appeal, De Jesus-Gomez claims that his sentence is both procedurally

and substantively unreasonable. “When reviewing a sentencing challenge, we

evaluate sentences imposed by the district court for reasonableness.” United

States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007) (citing United States v.

Booker, 543 U.S. 220 (2005); United States v. Kristl, 437 F.3d 1050, 1053 (10th

Cir. 2006)); see also Gall v. United States, --- U.S. ---, 128 S. Ct. 586, 594 (2007)

(“[A]ppellate review of sentencing decisions is limited to determining whether

they are ‘reasonable.’”). This inquiry includes both procedural and substantive

components, and we “review the sentence under an abuse-of-discretion standard.”

Gall, 128 S. Ct. at 597. “Procedural reasonableness involves using the proper

method to calculate the sentence. Substantive reasonableness involves whether

the length of the sentence is reasonable given all the circumstances of the case in

light of the factors set forth in 18 U.S.C. § 3553(a).” Conlan, 500 F.3d at 1169

(citations omitted).




                                          5
                             Procedural reasonableness

      De Jesus-Gomez first contends that his sentence is procedurally

unreasonable because the district court erroneously believed that the

“presumption of reasonableness” applied at the district court level. The

government correctly concedes that the district court erred and that the

presumption of reasonableness only applies at the appellate level. See Gall, 128

S. Ct. at 596-97; Rita v. United States, --- U.S. ---, 127 S. Ct. 2456, 2464-65

(2007); United States v. Arrevalo-Olvera, 495 F.3d 1211, 1213 (10th Cir. 2007);

United States v. Begay, 470 F.3d 964, 975-76 (10th Cir. 2006). The government

argues, however, that the district court’s procedural error was harmless.

      The government concedes that our harmless error standard applies here, so

we will review the district court’s procedural error under that standard. United

States v. Montgomery, 439 F.3d 1260, 1263 n.3 (10th Cir. 2006) (reviewing for

harmless error where “both parties agree the harmless error standard applies,”

even though we might otherwise have reviewed for plain error). But see United

States v. Brown, 316 F.3d 1151, 1155 n.1 (10th Cir. 2003) (reviewing for plain

error even though “[t]he government argues that we should apply harmless error

analysis rather than plain error analysis”). “Harmless error is that which did not

affect the district court’s selection of the sentence imposed.” Montgomery, 439

F.3d at 1263. The government has the burden of proving that the district court’s

sentencing error was harmless. See id.

                                          6
      The government has not shown that the district court’s error was harmless.

De Jesus-Gomez correctly notes that, in several cases where the district court

erroneously applied a presumption of reasonableness and then sentenced a

defendant at the bottom of the Guidelines range, we have reversed and remanded

for resentencing. See, e.g., Conlan, 500 F.3d at 1170 (“Mr. Conlan was sentenced

at the very bottom of his advisory guideline range, a sign we have taken in the

past to indicate that the court may have done something differently had it not felt

mistakenly bound by the guidelines.”); Begay, 470 F.3d at 976-77 (“But the

government fails to argue harmless error. Nor could it do so successfully. The

sentence imposed was at the bottom of the Guidelines range. We cannot say

whether the district court would have imposed the same sentence if it had

properly understood the post-Booker legal landscape.”); see also Arrevalo-Olvera,

495 F.3d at 1214 (“The district court’s imposition of a sentence above the low

end of the guideline range also makes Arrevalo-Olvera’s case distinguishable

from Begay.”). This case is no different. The district court, after erroneously

applying a presumption of reasonableness, and further stating that De Jesus-

Gomez had not overcome that presumption, imposed a sentence at the very

bottom of the Guidelines range. Under our precedent, “remand is required so that

the district court can determine whether it should impose a lower sentence, even

though a sentence within the Guidelines range may indeed be reasonable.”




                                          7
Begay, 470 F.3d at 976. We therefore REMAND with directions to vacate De

Jesus-Gomez’s sentence and resentence. 3


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




      3
       Because we are remanding De Jesus-Gomez’s sentence for resentencing
based on procedural error, we need not address his contention that his sentence is
substantively unreasonable. Conlan, 500 F.3d at 1170 n.*.

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