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

                                                                                  FILED
                                      No. 12-40936                          January 6, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff – Appellee
v.

LEONEL GONZALEZ-MANCILLA,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:12-CR-255


Before KING, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Leonel Gonzalez-Mancilla appeals from his
criminal sentence for illegal reentry after deportation pursuant to 8 U.S.C.
§ 1326(a) and (b). He asserts that the trial court committed reversible error
when it assessed him one criminal history point for each of two prior Wisconsin
misdemeanor convictions. Because the convictions were for disorderly conduct
offenses and should have been excluded from the sentencing calculations, we
REVERSE and REMAND for resentencing.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-40936
                               I. Background
      Leonel Gonzalez-Mancilla (“Gonzalez-Mancilla”), a Mexican citizen,
pleaded guilty without a plea agreement to illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a) and (b). Applying the United States Sentencing
Commission, Guidelines Manual, (“U.S.S.G.” or “Guidelines”), the presentence
report (“PSR”) calculated a total offense level of 24 and placed Gonzalez-
Mancilla in criminal history category IV. Based on his total offense level and
criminal history category, Gonzalez-Mancilla’s recommended Guidelines range
was 77 to 96 months of imprisonment.
      Among other things, the PSR assessed Gonzalez-Mancilla one criminal
history point each under U.S.S.G. § 4A1.1(c) for his 2004 Wisconsin
misdemeanor offense, resulting in a $385 fine, and his 2005 Wisconsin
misdemeanor offense, resulting in a $969 fine. The complaint for the 2004
offense states that Gonzalez-Mancilla verbally argued with his then-girlfriend,
“pushed her into the wall and at one point grabbed her head and slammed her
head against the wall, making a hole.” The complaint for the 2005 offense
states that Gonzalez-Mancilla showed up at his estranged wife’s place of
employment, called her “a bitch and a fat whore,” and then warned her that
she “better watch her back and he would be waiting for her when she gets off
work.” Also according to the complaint, around the same time, Gonzalez-
Mancilla went to a bar that his wife was in and threatened to shoot her in the
head. When police located and arrested Gonzalez-Mancilla several hours later,
they found a handgun in his vehicle.
      The judgments of conviction for the 2004 and 2005 offenses show that,
for both, Gonzalez-Mancilla pleaded no contest to “Disorderly Conduct
[968.075(1)(a) – Domestic Abuse].” They list the violation as “947.01” and the
severity as a Class B misdemeanor. The criminal complaints for both offenses
include a single count of “disorderly conduct, domestic abuse.” The complaints
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further provide that Gonzalez-Mancilla’s actions were “contrary to” Wisconsin
Statute §§ 947.01 and 968.075(1)(a).       They provide that by “invoking the
provisions of [§] 968.075(1)(a) . . . , because this charge is an act of domestic
abuse, costs upon conviction would include the domestic abuse assessment
imposed under [§] 973.055(1).”
      Before Gonzalez-Mancilla was sentenced, he submitted written
objections to the PSR’s assessment of one criminal history point each for his
two prior Wisconsin misdemeanor offenses. He argued that the offenses were
excludable “disorderly conduct” offenses under U.S.S.G. § 4A1.2(c)(1). The
Government responded that the offenses were distinguishable from “disorderly
conduct” offenses under U.S.S.G. § 4A1.2(c)(1) because they were considered
“domestic abuse incidents” under Wisconsin law.           The probation officer
advanced the same distinction in an addendum to the PSR. The probation
officer also explained that Wisconsin’s domestic abuse statute was similar to
Texas’s assault statute, which is a scored offense.       The officer noted that
Gonzalez-Mancilla had physically confronted his victim and made knowing
and intentional threats.
      During the sentencing hearing, Gonzalez-Mancilla reurged his objection
to the assessment of two criminal history points for his prior Wisconsin
misdemeanor convictions. The district court overruled that objection. The
district court sustained a separate objection by Gonzalez-Mancilla, reducing
his offense level to 21 and resulting in a Guidelines range of 57 to 71 months.
The district court sentenced Gonzalez-Mancilla at the bottom of the Guidelines
range to 57 months in prison and imposed a $100 special assessment.
Gonzalez-Mancilla timely appealed his sentence.


                           II. Standard of Review


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                                       No. 12-40936
       The parties acknowledge that Gonzalez-Mancilla raised in the district
court his objections to the assessment of criminal history points for his prior
Wisconsin misdemeanor convictions. For properly preserved objections, this
court reviews de novo a sentencing court’s interpretation and application of the
Guidelines. United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012).
                                     III. Discussion
       Gonzalez-Mancilla challenges on appeal the district court’s assessment
under U.S.S.G. § 4A1.1(c) of one criminal history point for each of his two prior
Wisconsin misdemeanor convictions. Under the Guidelines’ criminal history
scoring rules, a prior conviction resulting in a sentence of a fine is ordinarily
scored one criminal history point.             U.S.S.G. § 4A1.1(c); § 4A1.1 cmt. 5.
However, under certain conditions, a prior misdemeanor offense will not
trigger the assessment of a criminal history point when the prior offense is: (1)
an enumerated offense under U.S.S.G. § 4A1.2(c)(1) or (2) similar to such an
offense. 1 A criminal history point will not be assessed for a listed misdemeanor
offense, unless “the sentence was a term of probation of more than one year or
a term of imprisonment of at least thirty days” or “the prior offense was similar
to an instant offense.” U.S.S.G. § 4A1.2(c)(1)(A), (B). Gonzalez-Mancilla and
the Government both acknowledge that Gonzalez-Mancilla was not sentenced
to probation or imprisonment for his prior Wisconsin misdemeanor offenses
and that those offenses are not similar to the offense of illegal reentry after
deportation. The question in this appeal is whether or not Gonzalez-Mancilla’s
prior Wisconsin misdemeanor offenses are for a listed offense under U.S.S.G.
§ 4A1.2(c), or are “similar to” such an offense.


       1 The offenses listed in U.S.S.G. §4A1.2(c)(1) are: “Careless or reckless driving”;
“Contempt of court”; “Disorderly conduct or disturbing the peace”; “Driving without a license
or with a revoked or suspended license”; “False information to a police officer”; “Gambling”;
“Hindering or failure to obey a police officer”; “Insufficient funds check”; “Leaving the scene
of an accident”; “Non-support”; “Prostitution”; “Resisting arrest”; and “Trespassing.”
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                                  No. 12-40936
      A road map to the arguments here is useful. Gonzalez-Mancilla argues
that because each of his prior Wisconsin misdemeanor offenses is a listed
offense, § 4A1.2(c)(1)(A) governs and the offense therefore does not trigger an
additional criminal history point under § 4A1.1(c). The Government, seeking
to add the criminal history point for each conviction, argues that the conviction
is neither a listed offense nor similar to a listed offense under § 4A1.2(c)(1)(A)
and therefore qualifies for an additional criminal history point under
§ 4A1.1(c).
      Turning to Gonzalez-Mancilla’s Wisconsin misdemeanor convictions, he
argues that he was convicted solely of disorderly conduct under § 947.01 and
that “disorderly conduct” is an offense listed under U.S.S.G. § 4A1.2(c)(1). He
contends that the references in the charging documents and judgments of
conviction to “domestic abuse” and to § 973.055 and § 968.075 relate to
sentencing enhancements and other issues, and not to offenses for which he
was charged and convicted.
      The Government and the district court, by contrast, adopt the reasoning
of the PSR that Gonzalez-Mancilla was twice convicted of “disorderly conduct-
domestic abuse,” which is distinguishable from disorderly conduct as listed in
U.S.S.G. § 4A1.2(c)(1). In reaching this conclusion, the Government points to
references in the charging documents and judgments of conviction to the
domestic abuse surcharge statute, Wis. Stat. § 973.055, and the domestic abuse
incidents statute, § 968.075. Unlike disorderly conduct, domestic abuse is not
exempted as an enumerated offense under U.S.S.G. § 4A1.2(c)(1).
      In resolving this issue, we first consider whether Gonzalez-Mancilla was
convicted of a criminal offense under Wisconsin Statute § 968.075.
Section 968.075—entitled “domestic abuse incidents; arrest and prosecution”—
defines “domestic abuse” as one of several acts “engaged in by an adult person
against his or her spouse or former spouse, against an adult with whom the
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                                      No. 12-40936
person resides or formerly resided or against an adult with whom the person
has a child in common.” Id. § 968.075(1)(a). Acts qualifying as “domestic
abuse” include: (1) “intentional infliction of physical pain, physical injury or
illness”; (2) “intentional impairment of physical condition”; (3) sexual assault;
and (4) “a physical act that may cause the other person reasonably to fear
imminent engagement in the conduct described under [subdivisions] 1, 2, or
3.” Id. § 968.075(1)(a)(1)–(4).
       Although § 968.075 defines “domestic abuse,” it does not create criminal
liability.   The statute principally sets out policies for police and district
attorney’s offices to follow in making domestic abuse arrests and prosecutions.
See id. § 968.075(2)–(4), (6)–(9).         The sole provision directed at criminal
defendants, § 968.075(5)(a), imposes a 72-hour contact prohibition on anyone
arrested for (not convicted of) domestic abuse. 2               See State v. Neis, No.
09AP1287–CR, 2010 WL 2772679, at *4 (Wis. App. July 15, 2010) (holding that
while “§ 968.075(1)(a) appears in the court documents, the statute . . . plainly
governs law enforcement procedures in domestic abuse cases . . . [and] does not
create criminal liability for the domestic abuse perpetrator”); State v. Auger,
No. 03-3306-CR, 2004 WL 1057878, at *2 n.4 (Wis. App. May 11, 2004) (holding
that “[t]o the extent [the defendant] challenges the notation as adding domestic
abuse as an element of disorderly conduct, the judgment of conviction correctly
notes his actions were a violation of § 947.01, not § 968.075”). 3 Thus, the fact



       2 Section 968.075(5)(a)(2) makes individuals who intentionally violate the 72-hour
contact prohibition criminally liable for fines of up to $10,000 and imprisonment of up to 9
months. There is no suggestion in the record or in the parties’ briefs that Gonzalez-Mancilla
was convicted of violating the contact prohibition.
       3 The Government points us to State v. VanEperen, 2006AP2659–CR, 2007 WL
1892475 (Wis. App. July 3, 2004), in which a Wisconsin appeals court reversed a dismissal of
a complaint charging misdemeanor disorderly conduct and also referencing Wisconsin
Statute § 968.075. In concluding that there were sufficient facts to support the complaint,
the court discussed, inter alia, the elements for showing “domestic abuse” under § 968.075.
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                                       No. 12-40936
that Gonzalez-Mancilla’s conduct may have been referred to in the state court
documents as “domestic abuse” under § 968.075 does not show that he was
convicted of an offense called “domestic abuse.”
       Next, we consider whether Gonzalez-Mancilla was convicted of a
criminal offense under § 973.055, Wisconsin’s “domestic abuse assessments”
statute. Section 973.055 provides that a court “shall impose a domestic abuse
surcharge” if two conditions are met: (1) the defendant is sentenced under an
offense listed in the statute and (2) “[t]he court finds that the conduct
constituting the violation . . . involved an act by the adult person against his
or her spouse or former spouse, against an adult with whom the adult person
resides or formerly resided or against an adult with whom the adult person has
created a child.” Id. § 973.055(1)(a)(1), (1)(a)(2). Domestic abuse surcharges
were imposed on Gonzalez-Mancilla because disorderly conduct is an offense
listed in § 973.055(1) and because the acts underlying his two offenses were
against his live-in girlfriend and wife, respectively.
       We are persuaded by Gonzalez-Mancilla’s position that § 973.055 is a
sentencing statute rather than a statute of conviction. In Almendarez-Torres
v. United States, 523 U.S. 224, 226 (1998), the Supreme Court considered
whether the statutory provision at issue in that case, 8 U.S.C. § 1326(b)(2),
“defines a separate crime or simply authorizes an enhanced penalty.” The
Court explained that “[i]n answering this question, we look to the statute’s
language, structure, subject matter, context, and history—factors that
typically help courts determine a statute’s objectives and thereby illuminate
its text.” Almendarez-Torres, 523 U.S. at 228. Applying this analysis, it is
clear that the Wisconsin legislature did not intend § 973.055 to create a stand-


To read VanEperen as requiring the allegation of the elements of the domestic abuse statute
in order to charge a disorderly conduct violation would put it in conflict with Auger, Neis, and
the language of § 968.075, and we do not read it that way.
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alone offense. 4 By its own language, the statute imposes an “assessment” or
“surcharge” on adult persons “sentenced” for violating certain crimes.
Additionally, § 973.055 commits to a judge (rather than to a jury) the decision
of whether the conditions have been satisfied for imposing a domestic violence
surcharge. Id. § 973.055(1), (1)(a)(2), see also Auger, 2004 WL 1057878, at *2
& n.4 (holding that because § 973.055 “explicitly grants this sentencing
authority to the court[,] there is nothing for a jury to deliberate”). As a result,
we find that Gonzalez-Mancilla’s prior Wisconsin convictions were solely for
disorderly conduct offenses.
       The Government further argues that Gonzalez-Mancilla’s prior
Wisconsin misdemeanor offenses fall outside the generic offense of disorderly
conduct because they involved violent and threatening acts. Thus, in the
Government’s view, we should affirm the district court’s sentence even if
Gonzalez-Mancilla’s offenses are properly characterized under state law as
“disorderly conduct.”
       Gonzalez-Mancilla        acknowledges        that    Wisconsin’s      misdemeanor
disorderly conduct statute criminalizes violent conduct. At the time of his
conviction, the statute provided as follows:
       Whoever, in a public or private place, engages in violent, abusive,
       indecent, profane, boisterous, unreasonably loud or otherwise


       4 The Government responds by pointing to the Eighth Circuit’s holding in United
States v. Frausto-Vasquez, 435 F. App’x 575, 577 (8th Cir. 2011), that a reference to
§ 968.075(1)(a) in a state court disorderly conduct complaint was relevant to determining,
using the modified categorical approach, whether the prior offense was a “crime of violence”
under U.S.S.G. § 2L1.2(b)(1)(E). The Eighth Circuit sidestepped the defendant’s argument
that because § 968.075 was merely a “procedural statute,” it did not add an element to his
disorderly conduct discharge. The court explained that the reference to § 968.075 was
material under the modified categorical approach because Wisconsin’s disorderly conduct
statute criminalizes both violent and nonviolent conduct, while only the former is a “crime of
violence” for sentencing purposes. Frausto-Vasquez is inapposite because the present case
does not involve the application of the modified categorical approach, which permits courts
in limited circumstances to look beyond the elements of the statute of conviction.
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                                 No. 12-40936
      disorderly conduct under circumstances in which the conduct
      tends to cause or provoke a disturbance is guilty of a Class B
      misdemeanor.
Wis. Stat. § 947.01 (2005). Nevertheless, Gonzalez-Mancilla contends that the
generic offense of “disorderly conduct” is sufficiently broad to encompass even
violent and threatening behavior.
      In United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013), our en banc
court recently clarified our approach to determining whether an offense of
conviction is an enumerated offense under the Guidelines. We described this
approach as follows:
      First, we identify the undefined offense category that triggers the
      federal sentencing enhancement. We then evaluate whether the
      meaning of that offense category is clear from the language of the
      enhancement at issue or its applicable commentary. If not, we
      proceed to step two, and determine whether that undefined offense
      category is an offense category defined at common law, or an
      offense category that is not defined at common law. Third, if the
      offense category is a non-common-law offense category, then we
      derive its “generic, contemporary meaning” from its common usage
      as stated in legal and other well-accepted dictionaries. Fourth, we
      look to the elements of the state statute of conviction and evaluate
      whether those elements comport with the generic meaning of the
      enumerated offense category.
Id. at 552–53 (footnotes omitted). We further explained that “we may resort to
many sources . . . to determine whether an enumerated offense category is
defined at common law or not.” Id. at 552 n.16. These sources may include
“definitions in the variety of state codes, the Model Penal Code, federal law,
and criminal law treatises.” Id. at 552 n.17.
      Applying this approach here, we initially note that the Guidelines and
the relevant commentary do not define the offense of disorderly conduct as
enumerated in U.S.S.G. § 4A1.2(c). See United States v. Grob, 625 F.3d 1209,
1215 (9th Cir. 2010). Nor is disorderly conduct an offense category defined at


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                                 No. 12-40936
common law. See Rodriguez, 711 F.3d at 552 n. 16 (omitting disorderly conduct
from its lists of common law offenses); see also Wayne R. LaFave, 1 Subst.
Crim. L. § 2.1 n. 67 (2d ed. 2003) (acknowledging the Virginia Supreme Court’s
holding in Lewis v. Commonwealth, 34 S.E.2d 389 (Va. 1945), that disorderly
conduct was not a common law crime).             To determine the “generic,
contemporary meaning” of disorderly conduct, we look to its common usage as
stated in legal and other well accepted dictionaries.
      Black’s Law Dictionary provides that disorderly conduct refers to
“[b]ehavior that tends to disturb the public peace, offend public morals, or
undermine public safety.”      Black’s Law Dictionary 337 (9th ed. 1991).
Disorderly conduct incorporates the common law offense of breaching the
peace, which takes place “when either an assault is committed on an individual
or public alarm and excitement is caused.” Id. An older edition of Black’s
construes disorderly conduct in reference to the Model Penal Code. See Black’s
Law Dictionary 469 (6th ed.).      The Model Penal Code, in turn, defines
“disorderly conduct” in the following manner:
      A person is guilty of disorderly conduct if, with purpose to cause
      public inconvenience, annoyance, or alarm, or recklessly creating
      a risk thereof, he: (a) engages in fighting or threatening, or in
      violent or tumultuous behavior; or (b) makes unreasonable noise
      or offensively coarse utterance, gesture or display, or addresses
      abusive language to any person present; or (c) creates a hazardous
      or physically offensive condition by an act which serves no
      legitimate purpose of the actor.




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                                       No. 12-40936
Model Penal Code § 250.2(2). 5 These dictionary sources support Gonzalez-
Mancilla’s position that the “generic, contemporary meaning” of disorderly
conduct includes fighting and using abusive language. 6
       Gonzalez-Mancilla further contends that this circuit previously
recognized in United States v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002), that
“disorderly conduct” can include violent and threatening behavior.                        The
defendant in that case, who was charged with illegal reentry following
deportation, appealed the assessment of one criminal history point for a prior
misdemeanor conviction under Texas’s criminal mischief statute, Tex. Penal
Code § 28.03 (1992). This court reversed on the ground that the defendant’s
criminal mischief conviction was sufficiently similar to the listed offense of
“disorderly conduct” to be excludable under U.S.S.G. § 4A1.2(c)(1). 305 F.3d at
368. In doing so, this court noted that “[d]isorderly conduct need not be violent,
but can include violent acts such as discharging a firearm in a public place.”
Id. at 367. Reyes-Maya provides additional support for Gonzalez-Mancilla’s
position that the generic offense of disorderly conduct includes violent conduct.
       Lastly, the Government argues that we should apply the multifactor
approach that this circuit developed in United States v. Hardeman, 933 F.2d
278, 281 (5th Cir. 1991), to decide whether Gonzalez-Mancilla’s prior offenses



       5 Gonzalez-Mancilla further cites to Wharton’s Criminal Law’s “disorderly conduct”
definition, which includes: “fighting or violent or disruptive behavior; making loud or
unreasonable noise; using offensive, abusive, or obscene language, or making an obscene
gesture.” Charles E. Torcia, 4 Wharton’s Criminal Law § 505 (15th ed. 2006).
       6 At oral argument, Gonzalez-Mancilla also pointed to the federal prohibition on
disorderly conduct in national parks. That prohibition provides, in relevant part, that “[a]
person commits disorderly conduct when, with intent to cause public alarm, nuisance,
jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person . . .
[e]ngages in fighting or threatening, or in violent behavior [or] . . . [u]ses language, an
utterance, or gesture, or engages in a display or act that is obscene, physically threatening
or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach
of the peace.” 36 C.F.R. § 2.34.
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are “similar to” an enumerated offense under U.S.S.G. § 4A1.2(c).            The
Hardeman factors were developed to determine whether a defendant’s conduct
was “similar to” an enumerated offense under U.S.S.G. § 4A1.2(c)(1). See id.
at 281; see also U.S.S.G § 4A1.2(c)(1) cmt. 12. Gonzalez-Mancilla’s primary
argument, however, is that his prior disorderly conduct offenses were both for
the listed offense of “disorderly conduct” (not merely “similar to” such an
offense). We have agreed with that argument. As a result, there is no need to
turn to the Hardeman factors. The categorical approach decides here whether
Gonzalez-Mancilla’s prior misdemeanor convictions were enumerated offenses.
See Descamps v. United States, 133 S. Ct. 2276, 2281–82 (2013) (explaining
that under the “categorical approach” courts compare the elements of the
statute of conviction to the elements of the generic offense included in the
Guidelines).
      Because the elements of the Wisconsin disorderly conduct statute
comport with the generic meaning of the enumerated offense of disorderly
conduct, the district court erred in assessing Gonzalez-Mancilla one criminal
history point under U.S.S.G. § 4A1.1(c) for each of his prior disorderly conduct
offenses.
      Gonzalez-Mancilla contends that the district court’s error mandates
reversal and a recalculation of his sentence. This court will reverse a district
court’s sentencing error “unless the error is harmless.” Reyes-Maya, 305 F.3d
at 368. In sentencing cases, “the 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);
see also United States v. Valdez, 726 F.3d 684, 697 (5th Cir. 2013). To satisfy
this burden, there must be “evidence in the record that will convince us that
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                                No. 12-40936
the district court had a particular sentence in mind and would have imposed
it, notwithstanding the error.”    Ibarra-Luna, 628 F.3d at 718 (internal
quotation marks omitted).    “That the sentence would remain within the
adjusted Guidelines range is insufficient to indicate harmlessness[.]” Valdez,
726 F.3d at 697.
      Had Gonzalez-Mancilla’s prior disorderly conduct convictions been
treated as exempt, he would have been assessed five instead of seven criminal
history points. This would have reduced his Criminal History Category to III
and resulted in a Guidelines range of 46 to 57 months. U.S.S.G. Ch. 5, Pt. A.
The Government does not point to any evidence in the record that defeats the
presumption against harmless error that applies to mistakes in calculating the
Guidelines range. Reversal of Gonzalez-Mancilla’s sentence is warranted.
                              IV. Conclusion
      For the foregoing reasons, we REVERSE Gonzalez-Mancilla’s sentence
and REMAND to the district court for further proceedings consistent with this
opinion.




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