     Case: 09-50747 Document: 00511359683 Page: 1 Date Filed: 01/24/2011




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

                                                 FILED
                                                                          January 24, 2011

                                       No. 09-50747                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,
v.

KARL MICHAEL MELENDEZ-MARCIA,

                                                   Defendant–Appellant.




               Appeal from the United States District Court for the
                            Western District of Texas
                           USDC No. 2:08-CR-1072-1


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Karl Michael Melendez-Marcia appeals the thirty-three month sentence
that was imposed after he pleaded guilty to illegally reentering the United
States after removal, in violation of 8 U.S.C. § 1326. Specifically, Melendez-
Marcia claims that the district court improperly applied an eight-level increase
in his guidelines base offense level after the court determined that his 2007 state




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50747

conviction for simple marijuana possession, his second such conviction,
constituted an “aggravated felony.”1 We vacate and remand.
                                              I
       At the time of Melendez-Marcia’s sentencing, this circuit adhered to the
rule that the eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) was
applicable when a defendant had two prior state convictions for possession of a
controlled substance.2 Specifically, we applied the “hypothetical approach” to
determine whether a prior state court conviction qualified as an aggravated
felony for purposes of the eight-level enhancement. The hypothetical approach
focused on whether the state court conviction that served as the basis of the
enhancement could have been punished as a felony under federal law, and,
because second possession offenses can be prosecuted as felonies under the
Controlled Substances Act,3 we concluded that such offenses must be treated as
aggravated felonies for sentencing purposes.4
       Melendez-Marcia conceded in his opening brief on appeal that this
precedent foreclosed his argument that his second possession offense did not
qualify as an aggravated felony. While this appeal was pending, however, the
Supreme Court issued its decision in Carachuri-Rosendo v. Holder. In that case,




       1
           See U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2(b)(1)(C) (2008).
       2
        See, e.g., United States v. Cepeda-Rios, 530 F.3d 333, 335-36 (5th Cir. 2008) (per
curiam) (holding that a second state conviction for simple possession qualified as an
aggravated felony), abrogated by Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010); United
States v. Sanchez-Villalobos, 412 F.3d 572, 576-77 (5th Cir. 2005) (same), abrogated by
Carachuri-Rosendo, 130 S. Ct. 2577.
       3
           See 21 U.S.C. § 844(a).
       4
        Cepeda-Rios, 530 F.3d at 335-36 (“Under the CSA, if his second possession offense had
been prosecuted under federal law, it would have been punishable as a felony. . . . This is why
Cepeda-Rios’s second state conviction for possession must be treated as an aggravated felony
for purposes of his sentence.”).

                                              2
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                                       No. 09-50747

the Court expressly rejected the hypothetical approach.5 The Court instead held
that “when a defendant has been convicted of a simple possession offense that
has not been enhanced based on the fact of a prior conviction, he has not been
‘convicted’ under § 1229b(a)(3) of a ‘felony punishable’ as such ‘under the
Controlled Substances Act,’ 18 U.S.C. § 924(c)(2).”6 The Court further explained
that “[t]he mere possibility that the defendant’s conduct, coupled with facts
outside of the record of conviction, could have authorized a felony conviction
under federal law is insufficient.”7          The effect of this holding is that the
§ 2L1.2(b)(1)(C) enhancement can apply only when the defendant’s record of
conviction for the second possession offense contains a “finding of the fact of his
prior drug offense,”8 thus establishing that the defendant was actually
prosecuted as a recidivist.9
       This court, often with no opposition from the Government, has vacated the
sentences of several defendants who received the § 2L1.2(b)(1)(C) enhancement
prior to Carachuri-Rosendo and remanded those cases for resentencing in light
of the Court’s decision.10 In this case, though, the Government suggests that we

       5
           Carachuri-Rosendo, 130 S. Ct. at 2586-89.
       6
           Id. at 2589.
       7
           Id.
       8
           Id. at 2586.
       9
        See Thomas v. Attorney General of the United States, 625 F.3d 134, 145 (3d Cir. 2010)
(“In Carachuri-Rosendo v. Holder, the Supreme Court focused on whether the record of the
defendant’s second state misdemeanor conviction contained ‘any finding of the fact of his prior
drug offense[,]’ which would render the second state misdemeanor conviction a recidivist
simple possession offense punishable under the Controlled Substances Act, hence an
aggravated felony.” (alteration in original)).
       10
         See, e.g., United States v. Paniagua, No. 09-20805, 2010 U.S. App. LEXIS 21772 (5th
Cir. Oct. 22, 2010) (unpublished) (per curiam); United States v. Zelaya, No. 10-20111, 2010
U.S. App. LEXIS 19281 (5th Cir. Sept. 15, 2010) (unpublished) (per curiam); United States v.
Casimiro, No. 10-20011, 2010 U.S. App. LEXIS 18488 (Sept. 1, 2010) (unpublished) (per
curiam).

                                              3
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can affirm Melendez-Marcia’s sentence. First, the Government argues that
Melendez-Marcia’s 2007 conviction was in fact based on a prior drug offense and
thus satisfies the Supreme Court’s test from Carachuri-Rosendo. And, second,
the Government contends that even if the district court erred in its application
of the § 2L1.2(b)(1)(C) enhancement to Melendez-Marcia, the sentencing record
establishes that this error played no part in the district court’s decision to
impose a thirty-three month sentence. We now address these arguments.
                                               A
      First, the Government suggests that the enhancement in this case
comports with Carachuri-Rosendo because Melendez-Marcia’s 2007 conviction
was actually based on a prior drug offense. Specifically, the Government notes
that Melendez-Marcia’s 2007 conviction was for “Possession of Marijuana 2nd”
and that Melendez-Marcia’s sentence for that conviction could only have been
imposed if he was sentenced as a recidivist under the laws of the state of
Virginia.11 We harbor serious concerns, however, as to whether the record
currently before the court is adequate to support such a determination.
      To wit, the Court in Carachuri-Rosendo directed that the § 2L1.2(b)(1)(C)
enhancement only applies if the “record of conviction” for the second possession
offense contains a “finding of the fact of his prior drug offense.”12 The Court also
observed that focusing on the record of conviction “comports with how [the Court
has] categorized convictions for state offenses within the definition of generic
federal criminal sanctions under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e).”13 We have held that “in determining the character of an offense
in the context of applying the Armed Career Criminal Act, the court is ‘limited


      11
           See VA . CODE ANN . § 18.2-250.1.
      12
           130 S. Ct. at 2586.
      13
           Id. at 2587 n.12.

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                                       No. 09-50747

to examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented.’”14 Sole reliance on a presentence
investigation report (PSR) to make that determination constitutes clear error.15
       Since the only evidence we currently have before us is Melendez-Marcia’s
PSR, we abstain from determining on this record whether the § 2L1.2(b)(1)(C)
enhancement continues to apply to him in light of Carachuri-Rosendo. The more
appropriate course is to vacate the sentence and remand the case to the district
court to apply Carachuri-Rosendo to these facts in the first instance. At that
time, the Government can supplement the record with the documents it believes
will establish that the enhancement applies to Melendez-Marcia.
                                              B
       As an alternative argument, the Government contends that, even if the
§ 2L1.2(b)(1)(C) enhancement should not apply to Melendez-Marcia, we need not
vacate his sentence because the district court did not rely on the sentencing
guidelines when it imposed the sentence. Any error in calculating Melendez-
Marcia’s guidelines sentence would thus be harmless.16                    Specifically, the
Government points to the following statement from the district court:
       Now I’m finding that the guidelines are not adequate. And basically
       what I’m doing is I’m not basing this decision in this particular case
       based on the guidelines. It’s still going to be a sentence that would




       14
        United States v. Rodriguez-Jaimes, 481 F.3d 283, 287 n.3 (5th Cir. 2007) (quoting
Shepard v. United States, 544 U.S. 13, 16 (2005)).
       15
          See United States v. Fambro, 526 F.3d 836, 849 (5th Cir. 2008) (“Had the district
court relied solely on the PSR in concluding that Fambro was an armed career criminal within
the meaning of 18 U.S.C. § 924(e), the district court would have been in error.”).
       16
          See, e.g., United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (“A
procedural error during sentencing is harmless if the error did not affect the district court’s
selection of the sentence imposed.” (internal quotation marks omitted)).

                                              5
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                                         No. 09-50747

        have fallen within the guidelines; but it’s not a guidelines sentence.
        It is a Booker sentence for all of the reasons that I have just stated.
Relying on this circuit’s decision in United States v. Bonilla, the Government
argues that the district court’s comments establish that Melendez-Marcia’s
sentence “did not result from” an error in calculating Melendez-Marcia’s
guidelines sentence.17 We reject the Government’s argument, for two reasons.
        First, we have observed that an error is harmless under Bonilla only when
“the district court: (1) contemplated the correct [g]uideline range in its analysis
and (2) stated that it would have imposed the same sentence even if that range
applied.”18 Here, the district court did not consider the guidelines range that
would        have    applied    to   Melendez-Marcia       absent    the   §   2L1.2(b)(1)(C)
enhancement.19 The district court only considered Melendez-Marcia’s enhanced
guidelines range and, after finding that range “not adequate,” nevertheless
imposed a sentence within that range.
        Second, although we recently recognized in United States v. Ibarra-Luna
that an error can be harmless even if the district court did not consider the
correct guidelines range in its analysis, such an error is harmless only if two
requirements are met: (1) “the [G]overnment must convincingly demonstrate
that the district court would have imposed a sentence outside the correct



        17
          See United States v. Bonilla, 524 F.3d 647, 655-56 (5th Cir. 2008) (holding that an
error in applying a sixteen-level crime of violence enhancement was harmless because “the
resulting non-guideline sentence did not result from the district court’s error in applying the
crime of violence enhancement”).
        18
             United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008).
        19
           Cf. Bonilla, 524 F.3d at 656-57 (holding an error harmless where “the record
reflect[ed] no disagreement between the parties or confusion by the district court about the
guidelines range before and after the enhancement”); United States v. Tzep-Mejia, 461 F.3d
522, 527 (5th Cir. 2006) (holding that a sentence “did not ‘result’ from an incorrect application
of the [g]uidelines” when “the district court carefully considered the two possible [g]uideline
ranges that could result depending on how it ruled on the defendant’s objection to the crime
of violence enhancement”).

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                                      No. 09-50747

[g]uidelines range for the same reasons it gave for imposing a sentence outside
the miscalculated [g]uidelines range”—in other words, that the district court
would find the correct guidelines range inadequate for the very same reasons
that it found the incorrect guidelines range inadequate—and (2) the Government
“must show that the . . . sentence the district court imposed was not influenced
in any way by the erroneous [g]uidelines calculation.”20 We believe that our
analysis here ends with Ibarra-Luna’s first requirement. Specifically, although
the district court found Melendez-Marcia’s enhanced guidelines range
inadequate, it nevertheless imposed a sentence within that range. The district
court’s reasons for rejecting the guidelines range may well have differed had it
been confronted with the correct guidelines range—which Melendez-Marcia
contends would have been no more than twenty-four to thirty months of
imprisonment—because the sentence imposed would then have represented an
upward departure from the guidelines. This case is thus unlike the one that
confronted us in Ibarra-Luna, in which the district court upwardly departed
from an erroneously calculated range that was already higher than the correct
range. As we explained in that case:
       That is not to say that it is not possible to show that the district
       court would unquestionably have rejected the correct [g]uidelines
       range for the very same reason it rejected the incorrect range. This
       case provides one such example. The district court explained that
       it was imposing an above-[g]uidelines sentence because it thought
       a sentence in the 12-to-18-month range was not long enough to
       prevent Ibarra from returning to society while he is still dangerous.
       Had the [g]uidelines range been correctly calculated, the range
       would have been 6 to 12 months. Yet if a sentence of 12 to 18
       months is not long enough, then plainly a 6-to-12-month sentence
       also would not be long enough, for precisely the same reason that




       20
         United States v. Ibarra-Luna, No. 09-40768, 2010 U.S. App. LEXIS 26017, at *15 (5th
Cir. Dec. 22, 2010).

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                                      No. 09-50747

      the district court gave. In these circumstances, the error may be
      harmless.21
Under the instant circumstances, however, we cannot conclude that the district
court would find Melendez-Marcia’s unenhanced guidelines range inadequate for
“precisely the same reason” that it rejected his enhanced guidelines range. We
thus cannot say that the Government has met the “heavy burden” of
“demonstrat[ing] that the court actually would have followed the very same
reasoning absent the error.” 22
                                  *        *         *
      For the aforementioned reasons, we VACATE and REMAND for
resentencing consistent with our opinion.




      21
           Id. at *13.
      22
           Id. at *12.

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