                                                       NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                           ________

                          No. 11-4383
                          _________


               UNITED STATES OF AMERICA

                               v.

                     GARFIELD BUTLER,
               also known as Douglas K. Lindsay,

                        Garfield Butler,
                                           Appellant
                           ________

         On Appeal from the United States District Court
                  for the District of New Jersey
                  (D.C. No. 1-11-cr-00097-001)
           District Judge: Honorable Joseph E. Irenas

                            _______

           Submitted Under Third Circuit LAR 34.1(a)

                    (Submitted July 9, 2013)

Before: GREENAWAY, JR., SLOVITER, and BARRY, Circuit Judges

                 (Opinion Filed: July 19, 2013)

                          __________

                           OPINION
                          __________




                               1
SLOVITER, Circuit Judge.


       Garfield Butler appeals the sentence imposed by the District Court following his

guilty plea to illegal reentry in violation of 8 U.S.C. § 1326. For the reasons that follow,

we will vacate the sentence and remand to the District Court for resentencing.1

                                             I.

       Butler is a native and citizen of Jamaica who came to the United States as a

teenager and was deported in 2006, after serving a fourteen-year sentence for drug

trafficking. Shortly thereafter, he returned to this country. In 2010, Butler was pulled

over for a traffic violation in New Jersey. He presented false identification documents to

the officer, but his true identity was quickly discovered. Butler was charged with the

New Jersey offense of exhibiting false documents as proof of identification, to which he

pled guilty. The federal government then indicted Butler for illegal reentry in violation

of 8 U.S.C. § 1326(a) and (b)(2). Butler pled guilty to that offense as well, and was

sentenced to forty-six months‟ imprisonment and a three-year term of supervised release.

He raises two issues on appeal.

                                             II.

       Butler first alleges that the District Court erred in imposing a term of supervised

release pursuant to the 2010 U.S. Sentencing Guidelines Manual (“Guidelines”), when


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231; we have appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).


                                              2
the 2011 Guidelines were applicable. Because Butler did not object to supervised release

at sentencing, we may intervene only if the District Court committed a plain error that

affected Butler‟s substantial rights and undermined “the fairness, integrity or public

reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009)

(internal quotation marks omitted); Fed. R. Crim. P. 52(b).

         The 2010 Guidelines directed sentencing courts to order a term of supervised

release whenever they imposed a prison sentence of more than one year. See U.S.S.G. §

5D1.1 (2010). Butler‟s pre-sentencing report was written on the basis of the 2010

Guidelines and cited § 5D1.1. Effective November 1, 2011, however, that provision was

amended to include the caveat that

         [t]he court ordinarily should not impose a term of supervised release in a case in

         which supervised release is not required by statute and the defendant is a

         deportable alien who likely will be deported after imprisonment.



U.S.S.G. § 5D1.1(c). 2 In Butler‟s case, supervised release was not required by statute,

see 8 U.S.C. § 1326; 18 U.S.C. § 3583, and Butler faced deportation after imprisonment,


2
    The commentary provides further explanation:

         Unless such a defendant legally returns to the United States, supervised release is
         unnecessary. If such a defendant illegally returns to the United States, the need to
         afford adequate deterrence and protect the public ordinarily is adequately served
         by a new prosecution. The court should, however, consider imposing a term of
         supervised release on such a defendant if the court determines it would provide an
         added measure of deterrence and protection based on the facts and circumstances
         of a particular case.


                                               3
see 8 U.S.C. §§ 1227(a)(2)(A)(iii); 1101(a)(43)(B). The record suggests that, at the time

of sentencing, removal proceedings were already underway.

       Sentencing courts must apply the guidelines in effect at the time of sentencing. 18

U.S.C. § 3553(a)(4)(A)(ii); United States v. Wood, 486 F.3d 781, 790 (3d Cir. 2007). In

addition, they must consider, among other sentencing factors, “any pertinent policy

statement” by the Sentencing Commission that is “in effect on the date the defendant is

sentenced.” 18 U.S.C. § 3553(a)(5). On the date of Butler‟s sentencing – November 30,

2011 – the 2011 Guidelines were in effect, but there is no indication that the District

Court was aware of the change to § 5D1.1. The Court simply imposed a term of

supervised release without discussion. The government concedes that it did so on the

basis of the 2010 Guidelines, and that this was plain error. The government argues,

however, that the error did not affect Butler‟s substantial rights.

       We cannot agree. It is true that the District Court could still have imposed a term

of supervised release pursuant to the 2011 Guidelines upon a finding that Butler‟s case

justified “an added measure of deterrence and protection.” U.S.S.G. § 5D1.1(c) cmt. n.5;

see also United States v. Dominguez–Alvarado, 695 F.3d 324, 329-30 (5th Cir. 2012)

(upholding imposition of supervised release pursuant to § 5D1.1(c) so long as sentencing

court provides “particularized explanation”). But the District Court made no such




U.S.S.G. § 5D1.1 cmt. n.5.


                                              4
finding.3 As we have noted before, “[i]t is difficult to conclude that a District Court

would have reached the same result in a given case merely because it could have

reasonably imposed the same sentence on a defendant.” United States v. Vazquez-

Lebron, 582 F.3d 443, 447 (3d Cir. 2009). For that reason, procedural errors in

sentencing are “seldom harmless,” and presumptively affect a defendant‟s substantial

rights even if the correct application of the Guidelines might produce the same result. Id.

       With respect to the final step of plain error analysis, “we will generally exercise

our discretion to recognize a plain error in the (mis)application of the Sentencing

Guidelines.” United States v. Irvin, 369 F.3d 284, 292 (3d Cir. 2004). Because the

District Court plainly erred in imposing supervised release pursuant to the 2010

Guidelines, and may have done otherwise on consideration of § 5D1.1(c) (2011), we will

remand for the District Court to determine whether a term of supervised release is

warranted.



                                             III.

       Secondly, Butler alleges that the District Court erred by including his New Jersey

false-identification conviction in his criminal history calculation, rather than considering

it as conduct “relevant” to his reentry offense under Guidelines § 1B1.3(a)(1). In

particular, Butler challenges the District Court‟s legal determination that “relevant

conduct” under § 1B1.3(a)(1) requires temporal proximity. Because Butler contests the

3
 On the contrary, the contrast between the District Court‟s reflexive imposition of
supervised release and its thoughtful analysis of every other issue at sentencing is strong
evidence that the Court did not consider whether supervised release was necessary.

                                              5
District Court‟s general construction of the Guideline, independent of the particular facts

of his case, our review is plenary. See United States v. Richards, 674 F.3d 215, 218 (3d

Cir. 2012); United States v. Abrogar, 459 F.3d 430, 433-36 (3d Cir. 2006).4

       To calculate a defendant‟s sentencing range pursuant to the Guidelines, a

sentencing court must make two central determinations: the “offense level” and

defendant‟s criminal history category. See U.S.S.G. §1B1.1. The offense level depends

on all “relevant conduct,” including

       all acts and omissions committed, aided, abetted, counseled, commanded, induced,

       procured, or willfully caused by the defendant . . . that occurred during the

       commission of the offense of conviction, in preparation for that offense, or in the

       course of attempting to avoid detection or responsibility for that offense.



Id. § 1B1.3(a)(1)(A). To determine the defendant‟s criminal history category,

meanwhile, the court must consider any “prior sentence,” except if it was for conduct that

is relevant under § 1B1.3. See id. §§ 4A1.1, 4A1.2 & cmt. n.1. This ensures that the

same conduct will never be considered toward both the offense level and the criminal

history category. See United States v. Rivera-Gomez, 634 F.3d 507, 510-12 (9th Cir.

2011) (explaining “interlocking definitions of relevant conduct and prior sentence”).




4
  The government argues that the dispute centers on the District Court‟s application of the
rule to the facts, which we review only for abuse of discretion. See Richards, 674 F.3d at
219-23. We disagree but note that we would reach the same result under that standard.


                                             6
       At Butler‟s sentencing, the District Court assumed “for purposes of deciding the

case” that Butler presented the false identification documents to the New Jersey police

officer in order “to avoid detection as an illegal immigrant here in the United States

following an illegal re-entry.” App. at 115. Nonetheless, the District Court held that this

conduct was not relevant under § 1B1.3(a)(1). The District Court reasoned that “the

relevant conduct exception applies only when, in a temporal sense, the conduct assists in

the commission of the original crime.” App. at 116.

       This interpretation was erroneous. According to its plain terms, § 1B1.3(a)(1)

defines relevant conduct to include any act committed by the defendant “to avoid

detection or responsibility” for the underlying offense, without regard to temporality.5 If

Butler presented false identification to avoid detection as an illegal reentrant, that conduct

was relevant within the meaning of § 1B1.3(a)(1). See Rivera-Gomez, 634 F.3d at 513

(“[I]f Rivera-Gomez resisted arrest in order to „avoid detection or responsibility‟ for the

illegal reentry offense . . . , the district court erred in accounting for the conduct as a prior

sentence, rather than as part of the offense level.”); United States v. White, 335 F.3d

1314, 1320 (11th Cir. 2003) (where White “gave a false name „to avoid detection or

responsibility for [the reentry] offense,‟” the district court “clearly erred” by assessing

criminal history points for his false-information conviction).6


5
 Sentencing courts consider temporal proximity to determine whether separate offenses
are part of the “same course of conduct” pursuant to § 1B1.3(a)(2), see, e.g., United
States v. Kulick, 629 F.3d 165, 171 (3d Cir. 2010), but that provision is not at issue here.
6
  The government invokes United States v. Washington, 549 F.3d 905 (3d Cir. 2008), for
the proposition that “a prior conviction constitutes „relevant conduct‟ only if it is

                                                7
       Classifying prior conduct as relevant to the offense level rather than a defendant‟s

criminal history score does not require the sentencing court to ignore it, as the District

Court seems to have feared. On the contrary: It means that the sentencing court must

take it into account in assessing, inter alia, the specific offense characteristics and

applicable Chapter Three adjustments. See § 1B1.3(a). Furthermore, the sentencing

court may consider all relevant conduct in the discretionary determination of the final

sentence.

       In Butler‟s case, as the government notes, classifying his false-identification

conduct as “relevant” may actually result in a higher Guidelines range, should the District

Court determine that it warrants an adjustment. See, e.g., U.S.S.G.§ 3C1.1 & cmt. n.4(G)

(adjustment for obstruction of justice applies if defendant made false statements that

“significantly obstructed or impeded the official investigation or prosecution of the

instant offense”). Alternatively, Butler‟s conduct “may warrant a greater sentence within

the otherwise applicable guideline range.” Id. cmt. n.5. On the other hand, the District

Court could determine that no adjustment applies, and sentence Butler to less than forty-




temporally and operationally connected to the current offense.” Response Br. at 36.
Washington neither asserts nor supports that rule. It simply notes that this court, in Irvin,
369 F.3d at 292, found Irvin‟s prior-conviction conduct to have occurred “during the
commission” of the sentencing offense because it was temporally and operationally
related. See Washington, 549 F.3d at 920-21. Neither case imposes a temporal
requirement on the avoid-detection prong of § 1B1.3(a)(1). The government also urges
us to follow United States v. Vargas-Garcia, 434 F.3d 345 (5th Cir. 2005), in which the
court held that Vargas-Garcia‟s resisting-arrest offense was not “relevant conduct,” but
rather an offense separate from his illegal reentry that could properly be considered in
calculating his criminal history. Id. at 349. We are not persuaded by the reasoning in
Vargas-Garcia and decline to follow it.

                                               8
six months‟ imprisonment. We therefore cannot say that the District Court‟s error was

harmless.



                                           IV.

      For the foregoing reasons, we will vacate the judgment of sentence and remand for

resentencing in accordance with this opinion.




                                            9
