                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-2409
                          ___________________________

                               United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                         Jesus Manuel Martinez Rodriguez,

                        lllllllllllllllllllll Defendant - Appellant.
                                         ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                            Submitted: December 10, 2012
                                Filed: May 28, 2013
                                   [Unpublished]
                                   ____________


Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.
                           ____________

PER CURIAM.

       Jesus Manuel Martinez Rodriguez pleaded guilty to one count of illegally
reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a) and
(b)(1), and one count of failing to register as a sex offender, in violation of 18 U.S.C.
§ 2250. The district court1 sentenced him to 40 months’ imprisonment. Martinez
appeals the district court’s application of the advisory sentencing guidelines. We
conclude that any error was harmless, and therefore affirm.

       In 2006, in an Iowa state court, Martinez pleaded guilty to failure to register
as a sex offender. Because Martinez was in the country illegally, he was removed to
his native country of Mexico. By May 2011, Martinez had illegally returned to the
United States and failed to update the Iowa sex offender registry. On May 4, 2011,
he forced his way into the home of a 14-year-old girl, threw her to the ground, choked
her, and raped her. Martinez pleaded guilty to third-degree sexual abuse in Iowa state
court and was sentenced to ten years’ imprisonment.

          Martinez was serving the state sentence in July 2011 when a federal grand jury
returned a two-count indictment charging him with reentering the country illegally
and with failing to register as a sex offender. After Martinez pleaded guilty to both
offenses, the district court correctly calculated an advisory guideline range of 33 to
41 months’ imprisonment, based on a total offense level of 18 and criminal history
category III. The total offense level reflected an eight-level increase under USSG
§ 2A3.5(b)(1), because “while in a failure to register status, the defendant committed
. . . a sex offense against a minor”—that is, the act of sexual abuse that led to the state
sentence. The district court sentenced Martinez to 40 months’ imprisonment on each
count, with the sentences to be served concurrently.

      The remaining issue at sentencing was whether the federal sentences should
run concurrently with, or consecutively to, Martinez’s state sentence. As relevant
here, the guidelines provide as follows regarding undischarged terms of
imprisonment:


      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

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      If . . . a term of imprisonment resulted from another offense that is
      relevant conduct to the instant offense of conviction under the
      provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant
      Conduct) and that was the basis for an increase in the offense level for
      the instant offense . . . the sentence for the instant offense shall be
      imposed to run concurrently to the remainder of the undischarged term
      of imprisonment.

USSG § 5G1.3(b) (emphasis added). The probation office recommended crediting
Martinez with the time he had served on the state sentence and running Martinez’s
federal sentences concurrently with the remainder of the state sentence based on
§ 5G1.3(b). The district court disagreed, stating that the eight-level increase that
Martinez received for sexual abuse was a “specific offense characteristic[],” but “not
relevant conduct” to the federal registration offense. S. Tr. 5. The court ordered that
25 months of the 40-month federal sentences run consecutively to the state sentence.
When Martinez’s counsel asked whether the court was varying from § 5G1.3, the
court responded: “I don’t think that’s a variance, but I recognize that it’s
discretionary with the Court, and I don’t believe that a concurrent sentence
here—completely concurrent sentence produces a sentence that is sufficient, but not
greater than necessary.” S. Tr. 13.

       On appeal, Martinez contends that the district court committed a procedural
error by declining to treat his sexual abuse of a minor as relevant conduct to the
registration offense. Martinez points out that his state offense counted as an eight-
level specific offense characteristic for the instant registration offense, see USSG
§ 2A3.5(b)(1)(C), and that specific offense characteristics typically are determined
based on relevant conduct. See USSG § 1B1.3(a); United States v. Cruz-Gramajo,
570 F.3d 1162, 1172 (9th Cir. 2009). But cf. USSG § 5G1.3, comment. (n.2(B)). It
also may be relevant that failure to register has been held by some courts to be a
continuing offense, see United States v. Pietrantonio, 637 F.3d 865, 870 (8th Cir.
2011), and that Martinez committed the state offense during the period when he failed

                                         -3-
to register. See USSG § 1B1.3(a)(1) (defining relevant conduct as including acts
committed “during the commission of the offense of conviction”). If the state offense
was relevant conduct to the instant offense of failure to register, then Martinez says
it follows that § 5G1.3(b) recommends that his federal sentences run concurrently
with his state sentence. He complains that the district court erred by failing to
recognize that it varied from the advisory sentence when it imposed partially
consecutive sentences.

       The appeal raises some complicated issues under the sentencing guidelines.
But even if we accept for the sake of analysis Martinez’s contention that the district
court erred in determining that § 5G1.3(b) was not applicable, a procedural error
under the advisory guidelines is harmless if the error did not substantially influence
the outcome of the sentencing proceeding. United States v. Henson, 550 F.3d 739,
741 (8th Cir. 2008). Section 5G1.3(b), where applicable, is merely advisory, and the
district court retains statutory authority to impose a partially consecutive sentence.
See 18 U.S.C. § 3584; United States v. Lone Fight, 625 F.3d 523, 525-26 (8th Cir.
2010).

      We are convinced that the district court would have imposed the same
sentence, whether or not it believed that § 5G1.3(b) applied. After announcing its
decision, the court explained that:

      regardless of how the guidelines were resolved today, the Court would
      have imposed the same sentence. The guidelines were just one of the
      3553(a) factors that the Court considered. In imposing the sentence, the
      Court considered the need for significant consecutive time to address
      what the Court considers to be guidelines that are relatively lenient,
      given the aggravated sentencing factors present in this case.




                                         -4-
S. Tr. 11-12 (emphases added). The court elaborated that although it did not think
the decision constituted a variance from the advisory guidelines, the court did not
believe that a “completely concurrent sentence produces a sentence that is sufficient,
but not greater than necessary.” Id. at 13.

       This explanation demonstrates that even if the advisory guidelines suggested
concurrent sentences, the district court would have rejected that advice, because it
thought there was a need for “significant consecutive time” to make the total sentence
“sufficient.” The court had discretion under the governing statute to make the
sentences partially consecutive, and the record reflects that it would have exercised
its discretion to impose the same sentence regardless of how it interpreted the
guidelines concerning relevant conduct and undischarged terms of imprisonment.

      The judgment of the district court is affirmed.
                     ______________________________




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