    Case: 16-50784    Document: 00514085659      Page: 1   Date Filed: 07/24/2017




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

                                 No. 16-50784                            FILED
                                                                     July 24, 2017
                                                                    Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

versus

DIEGO GUZMAN-RENDON, also known as Armando Guzman,
also known as Diego Guzman,
also known as Diego Armando Guzman-Rendon,
also known as Diego A. Guzman-Rendon,
also known as Diego Guzman Rendon, also known as Diego A. Guzman,

                                            Defendant–Appellant.




                Appeals from the United States District Court
                      for the Western District of Texas




Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Diego Guzman-Rendon appeals a sixteen-level enhancement to his sen-
tence for illegal reentry in violation of 8 U.S.C. § 1326. We affirm, concluding
that if there was error, it was harmless.
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                                   No. 16-50784
                                         I.
      The offense of conviction assigned a base offense level of 8. Guzman-
Rendon had several Florida convictions that could qualify as drug-trafficking
offenses under U.S.S.G. § L1.2(b)(1)(A)(i), subjecting him to a sixteen-level en-
hancement. The first was a conviction for distribution under Florida Statutes
§ 893.13(1)(a), which provides that “a person may not sell, manufacture, or
deliver, or possess with intent to sell, manufacture, or deliver, a controlled sub-
stance.” In connection with the same offense, Guzman-Rendon was also con-
victed of violating Florida Statutes § 934.215, which criminalizes the “use[] [of]
a two-way communications device . . . to facilitate or further the commission of
any felony offense.” He was also convicted of conspiracy to sell cocaine. The
probation officer concluded that these convictions qualified Guzman-Rendon
for the sixteen-level enhancement for a drug-trafficking offense under Sec-
tion 2L1.2(b)(1)(A)(i).

      Guzman-Rendon objected to the enhancement based on Sarmientos v.
Holder, 742 F.3d 624 (5th Cir. 2014). The probation officer agreed and revised
the presentence report (“PSR”) to remove the enhancement, leaving Guzman-
Rendon with an offense level of 10 and a criminal history category of II. The
government contended that the enhancement should still be applied based on
United States v. Juarez-Velazquez, 577 F. App’x 254 (5th Cir. 2014) (per cur-
iam). Guzman-Rendon maintained his position that the enhancement did not
apply because his Florida convictions did not qualify as drug-trafficking
offenses; he bolstered his argument with United States v. Medina, 589 F. App’x
277 (5th Cir. 2015) (per curiam).

      The district court stated its intent to “abide by the guidelines.” It dis-
cussed the range to which Guzman-Rendon would be subject, absent the
enhancement—eight to fourteen months.             But it found that the drug-

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                                       No. 16-50784
trafficking-offense enhancement was appropriate, rejecting Guzman-Rendon’s
arguments. This yielded a guidelines range of 41 to 51 months. The court also
stated that, in the event its calculation of the proper range were mistaken,
41 to 51 months was still the proper range “given Mr. Guzman-Rendon’s prior
drug history[,] his prior five-year sentence in the state penitentiary[, and] his
continuing to violate American law.” The court sentenced Guzman-Rendon to
41 months.

       On appeal, Guzman-Rendon and the government disagree on whether
the Florida convictions, or any of them, qualifies as a drug-trafficking offense
under the guidelines. The government avers, in the alternative, that even if
the court erred, any error was harmless.

                                             II.
       We proceed to address harmless error. As explained in United States v.
Richardson, 676 F.3d 491, 511 (5th Cir. 2012), in this circuit, there are two
ways to show harmless error if the wrong guidelines range is employed. One
is to show that the district court considered both ranges (the one now found
incorrect and the one now deemed correct) and explained that it would give the
same sentence either way. The other way applies even if the correct guidelines
range was not considered and requires that "the proponent of the sentence
convincingly demonstrate[] both (1) that the district court would have imposed
the same sentence had it not made the error, and (2) that it would have done
so for the same reasons it gave at the prior sentencing.” United States v.
Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). 1


       1 Ibarra-Luna contains some language suggesting that it represents the exclusive
manner for examining harmless error in this circuit. Specifically, it suggests that the
“harmless error doctrine applies only” if the procedure described above is followed. Id.
(emphasis added). Richardson postdates Ibarra-Luna, so if Ibarra-Luna’s claims of
exclusivity were correct, Richardson might not be valid precedent under this circuit’s rule of
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                                      No. 16-50784
       This case is in the former category. The court acknowledged that the
PSR recommended 8 to 14 months. It also heard about the same range from
the public defender. Nevertheless, it stated that Guzman-Rendon’s conduct
merited a departure upward to 41 to 51 months “even if the proper guideline
calculation is eight to fourteen months.”             Richardson states firmly that
because the court
    (1) considered all of the possible guidelines ranges that could have re-
    sulted if it had erred in applying one or more of the enhancements to
    Richardson's offense level; (2) found all of those resulting ranges to be
    insufficient in this case; and (3) stated that it would have imposed the
    same . . . sentence even if one of those ranges had applied, we hold that
    any error the district court made in calculating the guidelines range
    was harmless.
Richardson, 676 F.3d at 512. That holding is equally valid here.

       Two additional arguments can be made against Richardson’s applica-
bility. The first is that the court was not explicit enough about its considera-
tion of the 18 U.S.C. 3553(a) sentencing factors. That theory is not convincing.
The court repeatedly mentioned the 3553(a) factors, though it did not name all
of them, and concluded that a higher sentence was necessary even if it was
error as regards the guidelines based on factors that clearly fit within
3553(a)—namely, Guzman-Rendon’s recidivism, the fact that his offense was
indeed selling cocaine even if it did not fit explicitly within the guidelines
definition of a drug-trafficking offense, and the fact that five years in prison
apparently had not deterred him from continuing to violate the law. Guzman-
Rendon’s argument against this point goes essentially to how the court


orderliness, which prohibits one panel from overruling another panel absent intervening en
banc or Supreme Court decisions. See, e.g., Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d
375, 378 (5th Cir. 2008). However, Ibarra-Luna in turn postdates two cases, United States
v. Duhon, 541 F.3d 391 (5th Cir. 2008) and United States v. Bonilla, 524 F.2d 647 (5th Cir.
2008), which draw the same distinction Richardson does, and thus, to the extent Ibarra-Luna
claimed exclusivity, that claim would be foreclosed by the rule of orderliness.
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                                        No. 16-50784
weighed those factors, and “appellate review of a district court’s application of
the 18 U.S.C. § 3553(a) factors ‘is highly deferential . . . .’” 2 There is no reason
to disregard that deference here.

      The final contention came from Guzman-Rendon’s counsel during oral
argument: that Richardson provides a safe harbor only for those judges who
state they would pronounce precisely the same sentence. See Richardson,
676 F.3d at 512. Here, by contrast, the court announced it would apply the
same range regardless of error—removing this case, in counsel’s view, from
Richardson’s protections.

      We reject this notion, which would convert sentencing into a recitation
of talismanic words and phrases to save a sentence from the depredations of
the “dukes and earls of the appellate kingdom.” 3 The theory behind Richard-
son is that the consideration of both the correct and incorrect ranges―coupled
with the statement that the same decision would be made regardless―operates
in tandem to confer a kind of arguendo agreement with the defendant’s
position; the court informs him that it will agree with his position for the sake
of argument but will choose the same sentence anyway. That theory is as
applicable to the “same range”—the district court’s phrase of choice in this
case—as it is to the “same sentence.” Richardson, 676 F.3d at 512.

      The judgement of sentence is AFFIRMED.




      2  United States v. Aldawsari, 740 F.3d 1015, 1021 (5th Cir. 2014) (quoting United
States v. Heard, 709 F.3d 413, 435 (5th Cir. 2013)).
      3   United States v. Hall, 858 F.3d 254, 294 (4th Cir. 2017) (Wilkinson, J., dissenting).
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