     Case: 10-50264 Document: 00511475126 Page: 1 Date Filed: 05/12/2011




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

                                                 FILED
                                                                            May 12, 2011
                                     No. 10-50264
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN CARLOS PADRON, JR., also known as Juan Torres-Gonzalez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-643-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Juan Carlos Padron, Jr., appeals the sentence imposed following his guilty
plea conviction for illegal reentry after deportation, a violation of 8 U.S.C.
§ 1326.     At sentencing, the district court found that Padron’s second state
conviction for possession of a controlled substance constituted an aggravated
felony and enhanced his sentence by eight offense levels.                     See U.S.S.G.
§ 2L1.2(b)(1)(C). The district court ultimately sentenced Padron to 41 months



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50264 Document: 00511475126 Page: 2 Date Filed: 05/12/2011

                                  No. 10-50264

of imprisonment, which is within the calculated guidelines range of 33 to 41
months.
      However, the Government concedes that the district court improperly
applied the aggravated felony enhancement in light of the Supreme Court’s
opinion in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). In Carachuri-
Rosendo, the Supreme Court held that a second state offense for simple drug
possession is not an aggravated felony if that conviction “has not been enhanced
based on the fact of a prior conviction.” 130 S. Ct. 2589 (2010). Here, the record
does not establish that Padron was convicted of a second possession of cocaine
offense under a recidivist statute or that this conviction was based on his prior
conviction; thus, the district court erred in applying the aggravated felony
enhancement.     See id. Padron argues that, without the aggravated felony
enhancement, his correct guidelines sentencing range was 24 to 30 months of
imprisonment. The Government contends that we need not vacate Padron’s
sentence because the guidelines calculation error was harmless. Specifically, the
Government argues that the district court imposed an alternative non-guidelines
sentence.
      We have held that guidelines calculation error is harmless where the
district court has considered the correct range and has stated that it would
impose the same sentence even if the that range applied. United States v.
Duhon, 541 F.3d 391, 396 (5th Cir. 2008). In the instant case, there is no
indication in the record that the district court considered the correct guidelines
range. However, we recently held that a guidelines calculation error can be
harmless even where the district court has not considered the correct range.
United States v. Ibarra-Luna, 628 F.3d 712, 716-18 (5th Cir. 2010).           The
Government must “convincingly demonstrate” that the district court would have
relied on the same reasons to impose a sentence outside of the correct range and
must show that the sentence imposed “was not influenced in any way” by the
incorrectly calculated range. See id. at 718-19.

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                                  No. 10-50264

      In the instant case, Padron’s 41-month sentence was at the top of the
incorrectly calculated guidelines range of 33-41 months. If the district court had
considered the correct guidelines range of 24-30 months, Padron’s 41-month
sentence would have represented either an upward departure or an upward
variance from the guidelines range. Although the district court stated that the
41-month sentence was reasonable both with and without the Guidelines, we
conclude that the Government has not convincingly demonstrated that, if the
district court had considered the correct guidelines range, it would have relied
on the same reasons to impose a 41-month sentence. See Ibarra-Luna, 628 F.3d
at 718-19; see also United States v. Melendez-Marcia, No. 09-50747, 2011 WL
817926 at *3-4 (5th Cir. Jan. 24, 2011) (unpublished).
      Therefore, we VACATE Padron’s sentence and REMAND for resentencing
consistent with this opinion.




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