                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     July 3, 2013
                                                                    Elisabeth A. Shumaker
                                     TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,
               Plaintiff–Appellee,
 v.                                                           No. 12-5211
                                                   (D.C. No. 4:12-CR-00144-CVE-1)
 MISAEL BENITEZ RAMIREZ, a/k/a                                (N.D. Okla.)
 Misael Benitez-Ramirez, a/k/a Edwin
 Nelson Sorto, a/k/a Misael Ramirez, a/k/a
 Misael Benitez, a/k/a Edwin Gomez-
 Ramirez,
               Defendant–Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       Defendant Misael Benitez Ramirez pled guilty to illegally reentering the United

States after deportation and was sentenced to a fifty-seven-month term of imprisonment.

On appeal, Defendant contends the district court erred in referring to purported facts


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
outside of the record in announcing its sentencing decision.

       After Defendant entered his plea of guilty, a presentence report was prepared that

calculated an advisory guideline range of fifty-seven to seventy-one months’

imprisonment. Defendant did not file any objections to the PSR, but he requested a

downward departure on the bases that the sixteen-level enhancement he received under

U.S.S.G. § 2L1.2 was unduly harsh and his criminal history was otherwise overstated. He

also requested a downward variance based mainly on his personal history and

characteristics and the non-violent, victimless nature of the illegal reentry offense.

       At the sentencing hearing, the district court accepted the PSR as its findings of fact

and heard arguments from Defendant and his attorney. The court then denied

Defendant’s motion for a downward departure. The court stated:

       [Defendant] argues that the 16-level enhancement at paragraph 12 of the
       presentence report for a prior felony conviction that is a crime of violence
       unfairly constitutes double counting. The court has considered these factors
       and finds that the defendant’s conviction for force, assault with a deadly
       weapon, not a firearm, great bodily injury, qualifies as a crime of violence
       under sentencing guidelines section 2L1.2 and is a very serious offense.
       His prior offense involved the defendant hitting the victim in the face with a
       beer bottle and a metal chain causing permanent vision damage and stealing
       the victim’s jacket and backpack.

(R. Supplemental Vol. I, Sent. Tr. at 9.) The court also noted this offense occurred while

Defendant “was serving five terms of probation for three convictions of battery, one

conviction of fighting in a public place, and one conviction of assault.” (Id.) Thus, “[t]he

defendant’s criminal history shows a pattern of engaging in violence against others.”

(Id.) The court further noted Defendant’s criminal history computation did not fully

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represent his numerous violence convictions, since U.S.S.G. § 4A1.1(c) limited the

number of countable criminal history points. For all of these reasons, the court rejected

Defendant’s argument that his criminal history was overstated and denied his motion for a

downward departure. The court also rejected Defendant’s motion for a downward

variance, concluding that “there are no factors present that separate this defendant from

the mine run of similarly situated defendants in similar cases.” (R. Supplemental Vol. I,

Sent. Tr. at 10.) Considering all of the 18 U.S.C. § 3553(a) factors, the court held that a

sentence at the bottom of the advisory guidelines range was appropriate, and the court

therefore imposed a fifty-seven-month sentence.

       Defendant’s arguments on appeal are based on the district court’s description of

Defendant’s prior offense as “involv[ing] the defendant hitting the victim in the face with

a beer bottle and a metal chain causing permanent vision damage and stealing the victim’s

jacket and backpack.” (R. Supplemental Vol. I, Sent. Tr. at 9.) The PSR states, as the

factual basis for Defendant’s prior state court conviction for “Force/Assault with Deadly

Weapon (Not a Firearm): Great Bodily Injury” (R. Vol. II at 8), that Defendant and

another individual approached the victim at a train station; Defendant began yelling

profanities at the victim, then struck him in the face with a beer bottle; and after the other

individual joined in the attack, the victim dropped his backpack and jacket, which

Defendant and the other individual grabbed before fleeing the scene. Notably, the PSR

does not state that Defendant hit the victim with a metal chain, nor does it report the

attack caused permanent vision damage as the district court described. The source and

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veracity of these purported details is unclear from the record on appeal. Defendant thus

argues the court violated his Rule 32(i)(1)(C) right to comment on “other matters relating

to an appropriate sentence,” Fed. R. Crim. P. 23(i)(1)(C), and otherwise committed

procedural error in considering these extra-record “facts” at sentencing without first

providing Defendant with notice or an opportunity to comment.

       Where the district court commits a procedural error in sentencing, including a

violation of a defendant’s Rule 32 right to comment on sentencing-related matters,

“resentencing is required only if the error was not harmless; that is, if the error affected

the court’s selection of the sentence imposed.” United States v. Cerno, 529 F.3d 926, 939

(10th Cir. 2008); see also United States v. Garcia, 78 F.3d 1457, 1465 (10th Cir. 1996)

(applying harmless error standard to the district court’s failure to provide a Rule 32

opportunity to comment). “Harmlessness must be proven by a preponderance of the

evidence, and the burden of making this showing falls on the beneficiary of the error—in

this case, the government.” Cerno, 529 F.3d at 939.1


       1
         The government argues we should review instead for plain error because
Defendant failed to raise an objection below. Defendant argues in response that an
objection is not required to preserve a Rule 32(i) argument for review, citing for support
to our opinion in United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996), in which
we concluded that because the defendant “was afforded no notice of or opportunity to
comment on the special condition” the district court imposed, his “attack on the special
condition was not waived by the failure to assert it below.” Moreover, the unforeseeable
error doctrine provides that “a defendant is not required to object when the sentencing
court commits an error that the defendant cannot be expected to anticipate.” United
States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008) (citing United States v.
Begay, 470 F.3d 964, 976 (10th Cir. 2006)). To the extent the unforeseeable error
doctrine remains good law—a question this circuit has yet to resolve, see id. at 899

                                              -4-
       We conclude any error the district court committed in this case was harmless, and

we therefore affirm the district court’s decision. We are persuaded by a preponderance of

the evidence that the district court’s consideration of the extra-record facts did not affect

the court’s selection of the sentence imposed. Although the record does not include a

factual basis for the district court’s statements that Defendant attacked the victim with a

metal chain and caused permanent vision damage, the PSR does state that Defendant pled

guilty to “Force/Assault with Deadly Weapon (Not a Firearm): Great Bodily Injury.” (R.

Vol. II at 8.) Thus, while the type of “great bodily injury” is unspecified in the PSR, the

PSR nevertheless clearly indicates this was a violent offense that caused a serious injury.

Moreover, the PSR details several other violent crimes Defendant was convicted of over

the years, including an offense in which he requested his aunt, then eight months

pregnant, to let him enter her house to hide from the police and, when she refused,

punched her in the head, causing her to fall backwards into the house. (R. Vol. II at 7; see

also R. Vol. II at 6-9 (describing three convictions for battery, another conviction for

assault, and one conviction for resisting officers who had responded to a “domestic in

progress” call).) Additionally, we note the court recited the contested extra-record facts

only in denying Defendant’s motion for a downward departure—it did not mention these

purported facts in denying the motion for a downward variance or selecting the ultimate



n.1—it would seem applicable to the alleged error in this case. However, we need not
resolve the disputed issues regarding the governing standard of review in this case; our
reasons for affirming under harmless error review would apply a fortiori if we reviewed
only for plain error.

                                             -5-
sentence imposed. And nothing about the court’s explanation suggests the extra-record

facts played a decisive role in its denial of the downward departure, much less in the

denial of the downward variance and selection of the sentence imposed. Considering all

of the circumstances of this case, we are persuaded by a preponderance of the evidence

that the district court would have selected the same sentence if it had considered only the

record evidence of Defendant’s serious violent criminal history. Thus, any error in the

district court’s consideration of extra-record facts and its corresponding failure to provide

Defendant with an opportunity to comment on these facts was harmless. We accordingly

AFFIRM.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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