     Case: 12-41303      Document: 00512726599         Page: 1    Date Filed: 08/07/2014




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

                                    No. 12-41303
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                        August 7, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee
v.

HECTOR VILLARREAL,

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2708-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Hector Villarreal pleaded guilty to conspiracy and substantive drug
offenses involving possession of marijuana. At sentencing, the Government
refused to move for an additional one-level reduction under the U.S.
Sentencing Guidelines for acceptance of responsibility because Villarreal
refused to waive his right to appeal. Villarreal challenged the denial of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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additional acceptance point on appeal, but we affirmed because his argument
was foreclosed by then-circuit precedent. See United States v. Villarreal, 540
F. App’x 365 (5th Cir. 2013). The Supreme Court vacated our judgment and
remanded for further consideration in light of the position asserted by the
Solicitor General in his brief on behalf of the United States concerning
Amendment 775 to the Sentencing Guidelines. See Villarreal v. United States,
134 S. Ct. 1939 (2014). We requested supplemental briefs from the parties,
and we now again affirm Villarreal’s sentence.
      Amendment 775, which became effective on November 1, 2013, provides
that “[t]he government should not withhold [a § 3E1.1(b)] motion based on
interests not identified in § 3E1.1, such as whether the defendant agrees to
waive his or her right to appeal.” U.S.S.G. supp. to app. C, amend. 775, at p.43
(2013). In light of this amendment, the Government concedes that the denial
of the third acceptance point to Villarreal for acceptance of responsibility was
a procedural error. The Government argues, however, that the error was
harmless because the district court imposed a non-Guideline sentence and
would have imposed the same sentence regardless of the procedural error. We
agree.
      We have held that when the district court imposes a non-Guideline
sentence that did not “directly result” from a Guideline error, the sentence need
not be vacated. See United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008)
(internal quotation marks and citation omitted). The Government, as the
proponent of the sentence here, must meet a heavy burden of convincingly
showing “that the district court would have imposed a sentence outside the
correct Guidelines range for the same reasons it gave for imposing a sentence
outside the miscalculated Guidelines range.” United States v. Ibarra-Luna,
628 F.3d 712, 718-19 (5th Cir. 2010). It must also show that the “sentence the
district court imposed was not influenced in any way by the erroneous
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                                  No. 12-41303
Guidelines calculation.” Id. at 719. The Government must “point to evidence
in the record that will convince us that the district court had a particular
sentence in mind and would have imposed it, notwithstanding the error.” Id.
at 718 (internal quotation marks and citation omitted). We conclude that the
Government has met its burden here.
      Villarreal was sentenced based on a total offense level of 20 and a
Guideline range of 51 to 63 months. The district court went beyond that range,
however, and sentenced Villarreal to two concurrent terms of 80-months. If
Villarreal had been granted the third point for acceptance of responsibility, his
offense level would have been 19 and his guideline range would have been 46
to 57 months.
      When it imposed the 80-month sentence, the district court expressed
great concern about Villarreal’s criminal history and the fact that the instant
case marked Villarreal’s fourth conviction for a drug offense.           After an
extensive discussion of Villarreal’s criminal history, the district court stated as
follows:
            The guideline range that I have . . . is 51 to 63 months. . . .
      Very frankly, you know, I think we ought to be looking at
      something much higher because, as I said, you know, in the past
      really ten years, less than ten years, you have accumulated four
      convictions now. And I honestly don’t know, Mr. Villarreal,
      whether I can expect anything different when you come out.
      You’re still a young man. And it’s been, sad to say, that this
      appears to be your resort whenever you think you need some extra
      money.

            So under all the circumstances, Mr. Villarreal, while the
      court has sustained the objection as far as the use of a minor, the
      court nonetheless believes that a sentence above the guidelines
      range is warranted here. The court is going to sentence you, Mr.
      Villarreal, to a term of 80 months in custody.



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                                  No. 12-41303
             The Court has considered all the [§ 3553(a)] factors that it’s
      required to consider. Of primary concern to the court here is the
      need to reflect the seriousness of this offense, especially, as I said,
      in light of the fact that this is now fourth conviction for the similar
      conduct. It is also necessary to promote respect for the law, to
      afford adequate deterrent to future criminal conduct, and to
      protect the public from further crimes committed by you.

           So for all those reasons, the court sentences you to a term of
      80 months in custody as to each one of the counts.

      Because the court did not consider a sentence within the 51-to-63-month
Guideline range to be long enough, it clearly would not have considered a
sentence within the correctly calculated range of 46-to-57 months to be long
enough. Therefore, the district court’s explanation of the sentence indicates
that the court would have imposed a non-Guideline sentence for the same
reason even if it had considered the correct Guideline range. See Ibarra-Luna,
628 F.3d at 719. We are also convinced that the district court would have
imposed the same sentence. Several factors combine to inform our conclusion.
      First, the district court never referred to the incorrect Guideline range
as a basis for its calculation, and it instead focused on the § 3553(a) factors as
the reason for its sentence. See United States v. Ramos, 739 F.3d 250, 254 (5th
Cir. 2014). Second, the chosen sentence of 80 months is not a multiple or
derivative of either the minimum or maximum of the incorrect Guideline
range, which suggests that the Guideline range did not influence the sentence.
See Ibarra-Luna, 628 F.3d at 719 (holding procedural Guideline error was not
harmless where inter alia the sentence imposed was exactly double the
Guideline maximum and triple the Guideline minimum); cf. United States v.
Mendoza-Perez, 496 F. App’x 431, 437 & n.19 (5th Cir. 2012).          Finally, and
most important, the district court took care to explain that the 80-month
sentence was required by Villarreal’s extensive criminal history, the need for

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                                No. 12-41303
the sentence to reflect the seriousness of the offense, the requirement of
promoting respect for the law, and the goal of affording adequate deterrence of
and protection from future crimes by Villarreal.      The district court thus
indicated that the sentence was “based on independent factors” and was not
influenced by the incorrect Guideline range. Id. We are convinced that the
district court would have imposed the very same sentence if it had not made
an incorrect Guidelines calculation, and the error is therefore harmless.
      AFFIRMED.




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