     Case: 10-50406 Document: 00511428607 Page: 1 Date Filed: 03/30/2011




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

                                                 FILED
                                                                           March 30, 2011
                                     No. 10-50406
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALBERTO VASQUEZ-TOVAR, also known as Alberto Looney Quitana,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-3121-1


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Alberto Vasquez-Tovar appeals the 70-month sentence that was imposed
after he pleaded guilty to illegally reentering the United States following
removal, in violation of 8 U.S.C. § 1326.
       The Government concedes that the district court improperly applied a
16-level crime of violence enhancement to Vasquez-Tovar’s guidelines base
offense level. See United States v. Andino-Ortega, 608 F.3d 305, 311 (5th Cir.
2010).      The Government contends, however, that we need not vacate

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50406

Vasquez-Tovar’s sentence because any error in calculating Vasquez-Tovar’s
alternative non-guidelines sentence is harmless. Specifically, the Government
points to the district court’s statements that “the [70-87-month] range is
reasonable” and that it would “entertain that range, even if the enhancement
was eight levels or 12 levels” or “just a straightforward level enhancement.”
Relying on this circuit’s decision in United States v. Bonilla, 524 F.3d 647,
655-56 (5th Cir. 2008), the Government argues that the district court’s
comments establish that Vasquez-Tovar’s sentence was not affected by the
guidelines error.   We reject the Government’s argument for two reasons.
      First, this court has observed that an error is harmless under Bonilla only
when “the district court: (1) contemplated the correct [g]uideline[s] range in its
analysis and (2) stated that it would have imposed the same sentence even if
that range applied.” United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008).
Here, the record does not demonstrate that the district court considered the
guidelines range that would have applied to Vasquez-Tovar absent the 16-level
enhancement.
      Second, although we recently recognized in United States v. Ibarra-Luna
that an error can be harmless even if the district court did not consider the
correct guidelines range in its analysis, such an error is harmless only if two
requirements are met: (1) “the [G]overnment must convincingly demonstrate
that the district court would have imposed a sentence outside the correct
[g]uidelines range for the same reasons it gave for imposing a sentence outside
the miscalculated [g]uidelines range,” and (2) the Government “must show that
the . . . sentence the district court imposed was not influenced in any way by the
erroneous [g]uidelines calculation.” United States v. Ibarra-Luna, 628 F.3d 712,
718-19 (5th Cir. 2010). While the Government has arguably satisfied Ibarra-
Luna’s first requirement, our analysis ends with the second requirement. As in
Ibarra-Luna, the district court never explained how it selected 70 months of
imprisonment, as opposed to some other length of time within the guidelines

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                                 No. 10-50406

range that it considered. Additionally, the district 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.
      Under the present circumstances, we cannot conclude that the district
court was not influenced in any way by the guidelines range that it considered.
We thus cannot say that the Government has met the burden of demonstrating
that the district court “would have imposed the very same sentence if it had not
made an erroneous calculation.” Ibarra-Luna, 628 F.3d at 719.
      For the aforementioned reasons, we VACATE Vasquez-Tovar’s sentence
and REMAND for resentencing consistent with this opinion.          By failing to
provide any legal citation or analysis in support of his request that a different
district judge resentence him, Vasquez-Tovar has waived that issue. See United
States v. Torres-Aguilar, 352 F.3d 934, 936 n.2 (5th Cir. 2003).




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