     Case: 19-10695      Document: 00515503283         Page: 1    Date Filed: 07/27/2020




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

                                                                                FILED
                                      No. 19-10695                          July 27, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                Clerk


              Plaintiff - Appellee

v.

VICTOR LEONEL ORTIZ ALVAREZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-32-1


Before KING, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       The defendant was arrested for operating a methamphetamine-
recrystallization laboratory and subsequently pleaded guilty to conspiracy to
possess methamphetamine with intent to distribute. He was sentenced, in
accordance with the guidelines, to 480 months’ imprisonment, the statutory
maximum. On appeal, he argues that an offense-level enhancement for
unlawfully treating or storing hazardous waste, which increased his guideline


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10695
sentence, was erroneous because there was no evidence of any hazardous waste
at the laboratory. Because the district court indicated a preference for a
sentence at the statutory maximum for reasons unrelated to the hazardous-
waste issue, we conclude that any error was harmless and affirm.
                                            I.
        Victor Ortiz Alvarez was arrested after leaving a residence that was
known to be a “clandestine methamphetamine re-crystallization laboratory.” 1
Ortiz       Alvarez   agreed   to   plead        guilty    to   conspiracy    to   possess
methamphetamine with intent to distribute, and he cooperated with DEA
investigators, assisting them with the identification and arrest of his
coconspirators.
        According to his presentence investigation report (PSR), Ortiz Alvarez
had a category I criminal history, but his crime had an offense level of 43.
Under those conditions, the sentencing guidelines would normally call for a life
sentence. But because the crime to which he pleaded guilty carries a maximum
sentence of forty years, see 21 U.S.C. §§ 841(b)(1)(B), 846, his guideline
sentence was exactly that: 480 months. See U.S. SENTENCING GUIDELINES
MANUAL § 5G1.1(a) (U.S. SENTENCING COMM’N 2018).
        Ortiz Alvarez filed several objections to the PSR. At issue here is his
objection to a two-level enhancement for unlawful treatment or storage of
hazardous waste. See id. § 2D1.1(b)(14)(A). Without this enhancement, his
offense level would have been 41, and his guideline sentencing range would
have been 324-405 months. See id. ch. 5, pt. A (table).
        The PSR stated that this sentence enhancement applied because:
        [N]umerous items [in the residence] were identified as “hazardous
        waste” and the treatment of these items was in violation of the


        1In other words, the residence was used for converting liquid methamphetamine into
crystal methamphetamine.
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                                 No. 19-10695
      Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d).
      Specifically, Ortiz Alvarez knowingly treated and stored
      hazardous waste . . . without a permit . . . . Further, AET
      Environmental Services had to dispose of all hazardous materials
      associated with the clandestine laboratory . . . .
In response to Ortiz Alvarez’s written objections, the government asserted that
“it goes without saying that the conversion of methamphetamine in liquid form
to crystalline form involves some sort of chemical process the interruption of
which would produce something hazardous and/or toxic.” The government also
observed that “a hazardous waste company was employed to dispose of the
chemicals in this case.” Similarly, the probation office stood by the PSR,
asserting that “samples of the contaminated liquids and solids . . . were
transferred to AET Environmental Services for destruction due to [their]
hazardous nature and contamination.”
      Ortiz Alvarez was sentenced on the same day, before the same district
judge, as Noe Paramo Castaneda, one of his codefendants. Paramo Castaneda
was sentenced first, and he raised an objection to the same hazardous-waste
enhancement. The district court stated that “[a]pparently the material that
was disposed of, as part of the process of making the methamphetamine, was
hazardous in the sense that a special group had to be enlisted to dispose of the
material.” For this reason, the district court overruled Paramo Castaneda’s
objection.
      Ortiz Alvarez was sentenced next. At his hearing, a DEA agent
acknowledged that no testing was performed on the “actual hazardous
material” found in the residence. Nevertheless, the district court overruled
defense counsel’s objection to the hazardous-waste sentencing enhancement,
by reference to Paramo Castaneda’s objection:
      You were in the courtroom and heard the discussion when we dealt
      with [this objection] in the last case. Of course, [Ortiz Alvarez]’s
      not bound by what we dealt with in the last case, but I think the
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                                 No. 19-10695
      Presentence Report has sufficient information, and the probation
      officer’s response to the objection, and the government’s response
      to the objection, for me to realize that the objection is without
      merit, so I’m going to deny that objection.
      The DEA agent also testified that Ortiz Alvarez “was honest and gave
[the DEA] all the information that he was able to.” And the district court found
that Ortiz Alvarez “did provide substantial assistance to the government.” But
the court also expressed concern that Ortiz Alvarez was involved with a
Mexican cartel that was importing methamphetamine, cocaine, and heroin into
Oklahoma City, Fort Worth, and Dallas, and the court observed, “if the
government had charged the defendant with his true offense conduct, he would
have had a life sentence guideline range, and I would have imposed a life
sentence.” Consequently, the district court declined to depart downward from
the guidelines, despite the government’s request. The court explained, “I think
the government has already adequately rewarded the defendant by virtue of
the method of charging him so that he’s no longer exposed to a life sentence
and instead has a maximum sentence of 480 months.”
      Accordingly, the district court sentenced Ortiz Alvarez to 480 months’
imprisonment. This appeal followed.
                                      II.
                                      A.
      Under the sentencing guidelines, the defendant’s offense level should be
increased by two “[i]f the offense involved . . . the unlawful transportation,
treatment, storage, or disposal of a hazardous waste.” U.S. SENTENCING
GUIDELINES MANUAL, supra, § 2D1.1(b)(14)(A)(ii). The application notes
explain that this enhancement applies “if the conduct for which the defendant
is accountable . . . involved any . . . transportation, treatment, storage, or
disposal violation covered by [four different federal statutes, including] the
Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d).” Id. § 2D1.1 cmt.
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                                 No. 19-10695
n.18(A). We review the district court’s application of the sentencing guidelines
de novo and its factual findings for clear error. United States v. Sauseda, 596
F.3d 279, 281 (5th Cir. 2010).
      Ortiz Alvarez argues that the hazardous-waste enhancement was
improper because the government failed to prove that he violated the Resource
Conservation and Recovery Act. In particular, he argues that the government
failed to identify any hazardous waste that he treated, stored, or disposed of,
and he argues that the use of a “cleanup crew”—which he asserts occurs as a
matter of course—does not establish the presence of material that constitutes
“hazardous waste” as defined by federal law. The government responds that
the district court could have concluded that hazardous waste was being stored
in the residence because the PSR stated that “acetone cans” were found on the
property. We need not resolve this dispute, however. For having carefully
reviewed the record, we think that any error in calculating Ortiz Alvarez’s
guideline sentence was harmless.
                                      B.
      “An erroneous guidelines range calculation is harmless if (1) the district
court would have imposed the same sentence had it not made the error, and
(2) it would have done so for the same reasons it gave at the prior sentencing.”
United States v. Stanford, 823 F.3d 814, 845 (5th Cir. 2016) (cleaned up).
Accordingly, we will not remand a case for resentencing if there is “evidence in
the record that [convinces us] that the district court had a particular sentence
in mind and would have imposed it, notwithstanding the error.” Id. (citation
omitted). The government bears the “heavy burden” of establishing that an
error was harmless. United States v. Ibarra-Luna, 628 F.3d 712, 717 (5th Cir.
2010). “[A]n incorrect Guidelines calculation will usually invalidate the
sentence, even when the district court chose to impose a sentence outside the
Guidelines range.” Id.
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                                No. 19-10695
     The district court explained its sentence as follows:
     [I]f the government had charged the defendant with his true
     offense conduct, he would have had a life sentence guideline range,
     and I would have imposed a life sentence, so I’m going to sentence
     him to the top of the guideline range, which is capped at 480
     months by virtue of the method by which the government charged
     him.
Ortiz Alvarez argues that this language reveals an intention by the district
court to sentence him in accordance with the sentencing guidelines, whatever
they may have been. We disagree.
     In our view, the district court’s statement indicates that it considered a
life sentence to be the appropriate punishment for Ortiz Alvarez’s conduct and
that it imposed a 480-month sentence instead because that was the longest
sentence available. We note that the district court imposed the statutory
maximum despite both the government and the defendant requesting a shorter
sentence. Additionally, it is clear from the transcript—as Ortiz Alvarez does
not dispute—that the alleged hazardous-waste violation did not motivate the
district court’s determination of what sentence would be appropriate.
Accordingly, we conclude that the district court would have imposed the same
sentence, for the same reasons, even if there had been no hazardous-waste
enhancement and Ortiz Alvarez’s guideline sentence had been shorter.
                                     III.
     On that basis, we AFFIRM the judgment of the district court.




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