     Case: 11-11067     Document: 00512049797         Page: 1     Date Filed: 11/09/2012




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

                                                                            FILED
                                                                         November 9, 2012

                                       No. 11-11067                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

BERNARDINO MENDOZA-PEREZ

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                                  4:11-CR-86-1


Before WIENER, CLEMENT, and PRADO, Circuit Judges
PER CURIAM:*
        Defendant-Appellant Bernardino Mendoza-Perez1 appeals a 40-month
sentence imposed after he pleaded guilty to one count of illegal reentry in
violation of 8 U.S.C. § 1326. Mendoza contends that the district court plainly
erred when it categorized a 1991 Texas conviction for offering to sell marijuana
as an “aggravated felony” under United States Sentencing Guidelines (U.S.S.G.)


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        1
        The defendant goes by the surname “Mendoza,” and we will henceforth refer to him
by that name.
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                                         No. 11-11067

Section 2L1.2(b)(1)(C). Although the parties agree that the enhancement was
plain error, we conclude that it did not affect Mendoza’s substantial rights. We
therefore AFFIRM the judgment, as modified herein.


                            I. FACTS AND PROCEEDING
      In July 2011, at the age of 64, Mendoza pleaded guilty to a one-count
indictment charging him with illegal reentry after deportation in violation of 8
U.S.C. § 1326. Mendoza allegedly had reentered to care for his dying wife.
      In the Presentence Investigation Report (PSR), the probation officer noted
four prior convictions: a 1981 conviction for transporting illegal aliens; a 1983
conviction for aiding and abetting illegal aliens; a 1991 conviction for offering to
sell 50-200 pounds of marijuana; and a 2004 conviction for simple possession of
cocaine. Because of the age of the first three convictions, only the 2004 cocaine
conviction affected Mendoza’s criminal history score, resulting in an increase of
three points.       Another two points were assessed because, at the time he
committed the instant offense, he was still serving a parole term for the cocaine
conviction. With five criminal history points, Mendoza fell within Criminal
History Category III.
      The probation officer also calculated a base offense level of eight, and
applied a 16-level enhancement for a prior offense involving alien smuggling.
He withdrew the enhancement, however, after both parties objected that the
supporting documentation did not reflect a felony conviction, as required by
U.S.S.G. § 2L1.2(b)(1)(A)(vii). The government nevertheless insisted that the 16-
level enhancement should apply on the basis of Mendoza’s 1991 marijuana
conviction, which, the government contended, was a “drug trafficking offense for
which the sentence imposed exceeded 13 months.”2 Mendoza countered that the


      2
          See U.S.S.G. § 2L1.2(b)(1)(A)(i).

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                                  No. 11-11067

Guidelines provision did not apply, however, as the sentence imposed in
connection with the Texas conviction was suspended in its entirety, and thus did
not exceed the required 13 months. The probation officer agreed that the
enhancement did not apply, and in an addendum to the PSR, found Mendoza
properly accountable under U.S.S.G. § 2L1.2(b)(1)(D) for a four-level increase
based on the prior felony conviction. In a second addendum, however, the
probation officer determined that the marijuana offense was in fact an
aggravated felony – rendering the instant offense subject instead to an eight-
level increase under U.S.S.G. § 2L1.2(b)(1)(C). After applying a three-level
reduction for Mendoza’s acceptance of responsibility, the PSR calculated a total
offense level of 13.
      As determined in the PSR, that offense level, coupled with the Category
III criminal history score, produced a Guidelines range of 18-24 months. The
PSR recommended that the court consider an above-Guidelines sentence,
however, as the criminal history score did not adequately represent the
seriousness of Mendoza’s past crimes or his likelihood of recidivism. Mendoza
moved for a below-Guidelines sentence, contending that his age-related illnesses
and his motivation for reentering the United States rendered his case atypical.
The government objected, noting that Mendoza had been deported or removed
multiple times without having been prosecuted, and that his criminality had in
fact spanned several decades. A few days before sentencing, the court issued an
order presenting its tentative conclusion that, for the reasons noted in the PSR,
Mendoza should receive a sentence “significantly above the top of the advisory
[G]uideline range.” The court instructed the parties to approach sentencing with
its preliminary assessment in mind.
      At sentencing, the district court considered four-, eight-, and twelve-level
increases to Mendoza’s offense level to account for his prior marijuana
conviction. Ultimately, it settled on the eight-level increase for commission of

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                                       No. 11-11067

an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C), as recommended in the
second addendum to the PSR. Neither party voiced an objection to this selection.
       After acknowledging the PSR’s Guidelines range of 18-24 months, the
sentencing court heard Mendoza’s daughter speak of her father’s commitment
to caring for her sick mother. Although the court stood by its earlier tentative
conclusion that an above-Guidelines sentence was appropriate, it conceded that
the variance justified was “perhaps not as great as I initially – initially thought.”
The court acknowledged the mitigating role played by Mendoza’s motivation to
care for his wife, but stressed that such motivation did not justify the offense.
The court expressed concern with Mendoza’s flouting of United States
immigration laws and his likelihood of recidivism. Ultimately, it imposed a term
of 40 months imprisonment, which is 14 months above the top of the calculated
Guidelines range.
       Mendoza now challenges his sentence on the basis of the court’s
assessment of an eight-level increase to his offense level. He contends that,
because the prior drug offense was not, in fact, an aggravated felony, U.S.S.G.
§ 2L1.2(b)(1)(C) does not apply; that only the four-level increase under U.S.S.G.
§ 2L1.2(b)(1)(D) for a prior felony conviction is appropriate. Had the court so
found, Mendoza’s advisory range would have been 10-16 months.3


                                     II. ANALYSIS
A. Legal Standard
       Because Mendoza did not object to the eight-level enhancement and the
resulting 18-24-month advisory range in the district court, we review for plain




       3
         The 10-16-month range reflects Mendoza’s Category III criminal history score, and
a total offense level of 10. Mendoza would not have been entitled, in such case, to the
additional one-level reduction for his acceptance of responsibility under U.S.S.G. § 3E1.1(b).

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                                          No. 11-11067

error.4 To establish plain error, an appellant must show a forfeited error that
is clear or obvious and that affected his substantial rights.5 Mendoza can show
that his substantial rights are affected by demonstrating a reasonable
probability that, but for the district court's error, he would have received a lesser
sentence.6 Mendoza, not the government, has the burden of persuasion on this
issue.7 If he makes the required showing, we have the discretion to remedy the
error, but only if it “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.”8


B. Merits
       Mendoza insists that his Texas conviction for offering to sell marijuana
was not an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C), so that he was
not subject to the eight-level increase under that section. The government
concedes as much. Indeed, application notes accompanying that provision of the
Guidelines indicate that “aggravated felony” has the meaning given in 8 U.S.C.
§ 1101(a)(43) – which includes, among its defined offenses, “illicit trafficking in
a controlled substance . . . including a drug trafficking crime (as defined in
section 924(c) of Title 18)[.]”9 Section 924(c) defines “drug trafficking crime” as
essentially any felony punishable under the federal drug laws.10 In considering


       4
           United States v. Davis, 602 F.3d 643, 646-47 (5th Cir. 2010).
       5
           Id. at 647 (citing Puckett v. United States, 556 U.S. 129, 135 (2009)).
       6
           United States v. Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir. 2009).
       7
           United States v. Olano, 507 U.S. 725, 734 (1993).
       8
           Puckett, 556 U.S. at 135 (quoting Olano, 507 U.S. at 736).
       9
           U.S.S.G. § 2L1.2, cmt. 3(A).
       10
        See 18 U.S.C. § 924(c)(2) (“For purposes of this subsection, the term ‘drug trafficking
crime’ means any felony punishable under the Controlled Substances Act, the Controlled

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                                         No. 11-11067

the same Texas statute under which Mendoza was indicted and convicted, this
court has previously held that an offer to sell a controlled substance is not an
aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C).11
       The government concedes that the error in this case was plain. “Plain”
errors are those that are “clear or obvious,”12 as when the state of the law is
certain under the court’s precedents.13 Given this court’s determination of this
very issue in United States v. Ibarra-Luna,14 the current law was indeed clear
when the district court erroneously applied the eight-level enhancement.
       This is where the parties’ agreement ends and the heart of the dispute lies.
The government contends that, notwithstanding the court’s clear error in
assessing the eight-level increase, Mendoza has failed to demonstrate a
reasonable probability that the sentencing court would have imposed a lesser
sentence had it calculated the Guidelines range correctly. Not surprisingly,
Mendoza disagrees. He contends that (1) the two-month “gap” between the
incorrect Guidelines range under which he was sentenced and the correct range
under which he should have been sentenced counsels in favor of remand; (2) the
district court’s sentencing commentary evidences a “fluid view of the case” and
a willingness to reassess based on new considerations; and (3) other background
factors might have inspired leniency had the court not erred in applying the
enhancements. We consider these contentions in turn.




Substances Import and Export Act, or chapter 705 of title 46.”) (internal statutory citations
omitted).
       11
            See United States v. Ibarra-Luna, 628 F.3d 712, 715-16 (5th Cir. 2010).
       12
            Puckett, 556 U.S. at 135.
       13
            United States v. Price, 516 F.3d 285, 288 (5th Cir. 2008).
       14
            628 F.3d 712.

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                                      No. 11-11067

       Mendoza first notes the absence of an overlap between the incorrect
Guidelines range calculated (18-24 months) and the correct range that the court
should have calculated (10-16 months). He contends that the two-month hiatus
between the top of the correct range and the bottom of the applied range reflects
the Sentencing Commission’s conclusions about the disparateness of the two
offenses. This court has indeed “minded the gap” in past cases to infer that a
sentencing court relied on the Guidelines when the sentence imposed has fallen
within an incorrect Guidelines range15 that did not overlap with the correct
range.16 But here, Mendoza’s sentence fell well above even the incorrect, higher
range that the court considered. As the ultimate question is whether the court
would have imposed a different sentence if it had been calculated in light of the
proper advisory range, the court’s variance and imposition of an above-
Guidelines sentence demonstrates its disagreement with the Sentencing
Commission’s assessment of the appropriate sentence. Absent some indication
that the Guidelines actually affected the court’s sentence, Mendoza’s argument
based on the non-overlap of advisory ranges is unavailing.
       Mendoza rightfully notes, however, that a decision to sentence above even
the incorrect advisory range is not conclusive evidence that the court would have
imposed the same sentence under a different Guidelines range. Guidelines
ranges “often provide a ‘frame of reference’ for a district court's sentencing




       15
          See Davis, 602 F.3d at 649, 650 n.10 (collecting cases and noting that “none of the
‘overlap’ or ‘gap’ cases that this court has located[] involved facts similar to those in the
present case, in which the district court imposed a sentence above even the top end of the
incorrect advisory range while commenting on the seriousness of the offense”).
       16
         Even in cases of some overlap, a large enough distance between the correct advisory
range and the sentence actually imposed has led this court to find an effect on a defendant’s
substantial rights. See, e.g., Price, 516 F.3d at 289 (substantial rights affected when court
imposed 110-month sentence after considering incorrect advisory range of 110-120 months
rather than 92-115 months).

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                                       No. 11-11067

decisions, and such ranges are one factor that a district court must consider in
its § 3553(a) analysis.”17 In one case involving a preserved claim of
error (and thus, a different allocation of the burden to show harm), this court
expanded on this logic:
            Even when the district court ultimately decides to impose a
            sentence outside the Guidelines range, an error in its
            Guidelines calculation may still taint the non-Guidelines
            sentence. For instance, the district court might settle upon a
            particular non-Guidelines sentence by doubling the maximum
            Guidelines range, or by starting with the Guidelines range
            and adding or subtracting a fixed number of years. In such
            cases it may be clear that the district court's reasons for
            rejecting a sentence in the Guidelines range are unaffected by
            the error, but the error nevertheless is not harmless because
            the district court would not have imposed the very same
            sentence.18
For this reason, we must look beyond the sentence actually imposed and
consider the district court’s reasons for selecting it.
      Before the sentencing hearing, the district court issued an order
“tentatively conclud[ing]” that Mendoza “should receive a sentence of
imprisonment significantly above the top of the advisory Guideline range
applicable to him.” Although ostensibly affected at sentencing by Mendoza’s
daughter’s explanation of her father’s resolve to care for his wife, the court
reaffirmed its conviction that an above-Guidelines sentence was necessary to
address the § 3553(a) factors. It stated:
            The defendant has illegally entered the United States at least
            four times and – actually, at least five times I think, and then
            four of those entries apparently were after he had been
            deported, so he hasn’t shown the appropriate respect for the


      17
         Davis, 602 F.3d at 649 n.9 (internal citations omitted) (quoting United States v.
Smith, 440 F.3d 704, 707 (5th Cir. 2006)).
      18
           Ibarra-Luna, 628 F.3d at 718.

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                                  No. 11-11067

         laws of the United States relative to illegal entry into our
         country.

         I suppose that I should take into account, and I will take into
         account, the fact that perhaps some of those entries were
         related to his wife’s condition. Though that doesn’t make it
         right, it would provide some explanation, something in the
         nature of an excuse for that activity.

         And then we have the fact that he’s engaged in other criminal
         conduct, transporting illegal aliens back in 1981. He wasn’t
         given any criminal history points for that because of the age
         of it.

         And then he was convicted of aiding and abetting illegal
         aliens back in 1983. Again, he wasn’t given any criminal
         history points because of the age of the offense.

         Then he was convicted of aggravated delivery of marijuana of
         less than 200 pounds. That was in 1990, when he was 42
         years of age. Let’s see. He wasn’t given any criminal history
         points for that, either.

         And then he was convicted at age 56, in 2004, for possession
         of a controlled substance.

         I think in order to adequately address the need to deter the
         defendant from future conduct of the kind he’s engaged in,
         and to set an appropriate example for those who would be
         tempted to engage in that kind of conduct, a sentence above
         the top of the [G]uideline range is necessary, but not as –
         perhaps not as great as I initially – initially thought.

      The court then imposed a sentence of 40 months imprisonment, a three
year term of supervised release, and a special assessment of $100. The court
further explained its sentence:
         I think an upward variance is warranted in this case based on
         the things I’ve already mentioned, the serious nature and
         circumstances of the defendant’s offense and criminal history,


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                                       No. 11-11067

            and the history of reentering the United States illegally, and
            the characteristics of the defendant.

            In order to promote respect – respect for the law and provide
            punishment for the offense, and to protect the public from
            further crimes of the defendant, a sentence of the kind I’ve
            described, I believe, is necessary and appropriate.

       Mendoza contends that the court’s decision to impose a lesser above-
Guidelines sentence than it originally had planned evidences a judge with a fluid
view of the case and no strong commitment to a particular sentence. Mendoza
fails to recognize, however, that although the court consulted the sentencing
Guidelines, as it was required to do, those Guidelines seem to have proved non-
determinative in the formation of the sentence. At no point did the court suggest
a variance of any particular magnitude relative to the advisory range.19
       The court also highlighted Mendoza’s criminal history and his high risk
of recidivism as reasons for the sentence imposed. Although the court spoke
with less steadfastness than did sentencing courts in other recent cases that




       19
         Although certainly not dispositive of this point, we note that 40 months is a multiple
of neither the bottom (18 months) nor top (24 months) of the applied Guidelines range; a
prison term of 48 months, for example – double the upper end of the Guidelines range – might
have offered stronger support for Mendoza's argument that the Guidelines range indeed
provided the "frame of reference" instrumental in the court's selection of an appropriate
sentence. Cf. Ibarra-Luna, 628 F.3d at 719 (noting that the government had failed to
demonstrate harmless error in part because the 36-month sentence imposed was “exactly
double the Guidelines maximum and exactly triple the Guidelines minimum” – indicating a
sentence chosen to reflect a particular deviation from the Guidelines range).

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                                            No. 11-11067

Mendoza attempts to distinguish,20 nothing in the court’s statement of reasons
indicates that a lower Guidelines calculation would have affected the sentence.
       Mendoza further notes that the court could have eliminated any
speculation about the significance of the Guidelines calculation to its sentence
by stating that it would have imposed the same prison term regardless of the
Guidelines range.21 That it failed to do so, Mendoza argues, is evidence that the
sentence chosen in fact depended on the Guidelines calculation. We disagree
with that reasoning, especially given the dearth of other evidence indicating that
the court was even somewhat influenced by the Guidelines range.22 This case
is unlike United States v. Mudekunye,23 cited by Mendoza, in which this court
reasoned that the absence of a similar statement by the sentencing court
supported the defendant’s position. In that case, the court recognized that


       20
           Cf. United States v. Dickson, 632 F.3d 186, 191 (5th Cir. 2011) (finding no effect on
substantial rights when the district court, in imposing the statutory maximum term of
imprisonment, “highlighted Dickson's extensive criminal history and commented that ‘[h]e
[was] one of the most vicious predators on children’ [sic] it had ever encountered, . . . [and that]
no term of imprisonment would likely deter him from engaging in child molestation”); United
States v. Harris, 450 F. App’x 380, 382 (5th Cir. 2011) (unpublished) (finding no effect on
substantial rights when the district court “found expressly the advisory Guideline sentencing
range did not account adequately for [the defendant’s] behavior and criminal history; imposed
a sentence one month below the statutory maximum and well above the advisory sentencing
range; and, flatly rejected [the defendant’s] objection to the sentence, noting it was ‘not going
to shift’”).
       21
         Cf. United States v. Lemus-Gonzalez, 563 F.3d 88, 94 (5th Cir. 2009) (finding no
reasonable probability of a lesser sentence when the district court considered both the correct
and incorrect ranges and stated that it would have imposed the same sentence in any event);
United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (same); United States v. Tzep-Mejia,
461 F.3d 522, 526-27 (5th Cir. 2006) (same).
       22
        See Davis, 602 F.3d at 649 (“The court . . . had ample independent bases for imposing
the sentence that it did, and Davis has cited no statements in the record to indicate that the
court – which was required only to consider the advisory range indicated by the policy
statements and was permitted to impose any sentence within the statutory maximum when
determining the sentence – relied on the incorrect advisory range in determining his
sentence.”).
       23
            646 F.3d 281 (5th Cir. 2011).

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                                       No. 11-11067

“absent additional evidence, a defendant has shown a reasonable probability
that he would have received a lesser sentence when (1) the district court
mistakenly calculates the wrong Guidelines range, (2) the incorrect range is
significantly higher than the true Guidelines range, and (3) the defendant is
sentenced within the incorrect range.”24 Because the defendant in that case was
sentenced within the incorrect Guidelines range, the government had the burden
of demonstrating that the sentence would not have changed had the Guidelines
range been calculated correctly.25 By contrast, Mendoza was sentenced above
both the correct and the incorrect Guidelines ranges, so he is not entitled to the
presumption that the sentence imposed affected his substantial rights. Thus,
the mere absence of an unequivocal statement from the district court that its
sentence did not depend on the Guidelines calculation is not sufficient proof for
Mendoza to bear his burden.
       Finally, Mendoza contends that other factors might have “inspired
leniency or celerity” from the sentencing judge. This contention blends with the
previous one, as Mendoza must demonstrate the likelihood of a different
sentence based on the sentencing court’s assessment of the case. That court
framed the relevant facts and conceded that some (such as Mendoza’s reasons
for illegally reentering the United States) were mitigating, but noted that most
(such as Mendoza’s rap sheet’s spanning several decades, his continued flouting
of United States immigration law, and his middle-to-late-life involvement with


       24
         Id. at 289 (emphasis added) (citing United States v. John, 597 F.3d 263, 284-85 (5th
Cir. 2010); United States v. Jasso, 587 F.3d 706, 713 n.10 (5th Cir. 2009)).
       25
         Id. at 290 (reasoning that because it was “‘not apparent from the record that [the
defendant] would have received an above-Guidelines sentence,’ the imposed sentence affects
the defendant's substantial rights”)(quoting John, 597 F.3d at 285); see also United States v.
Hernandez, 690 F.3d 613, 621-22 (5th Cir. 2012) (defendant’s substantial rights affected when
court sentenced within the incorrect advisory range and no record evidence suggested that the
court would have imposed an above-Guidelines sentence had it considered the correct
Guidelines range).

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                                       No. 11-11067

illegal drugs) were aggravating.            Regardless whether the court remained
steadfast in its assessment of the appropriate sentence throughout the
proceedings, it never wavered in its conclusion that an above-Guidelines
sentence was warranted; neither did the Guidelines calculation have a manifest
impact on the court’s view of the sentencing factors – however kaleidoscopic it
might have been.
       Mendoza has failed to demonstrate a reasonable probability that, but for
the district court's plain error, he would have received a lesser sentence. Thus,
we need not decide whether to exercise our discretion to remedy the error.
       A limited remand is nevertheless necessary, however: The face of the
judgment reflects that Mendoza was convicted and sentenced under “8 U.S.C.
1326(a) and (b)(1)/(2).” Section 1326 subjects prior felons to a prison term of up
to 10 years for a non-aggravated felony (under subsection (b)(1)), and up to 20
years for an aggravated felony (under subsection (b)(2)). Because the (b)(2)
designation was erroneously added, and because that designation has future
immigration consequences,26 Mendoza’s judgment must be modified to reflect a
sentence under § 1326(b)(1) only. We therefore remand this case to the district
court for the limited purpose of revising its written judgment to reflect this
modification.27


AFFIRMED; REMANDED FOR CORRECTION OF JUDGMENT.




       26
        See, e.g., 8 U.S.C. 1227(a)(2)(A)(iii) (an alien convicted of an aggravated felony after
his admission is deportable).
       27
         See, e.g., United States v. Rivera Rosadao, 446 F. App’x 715, 716 (5th Cir. 2011)
(affirming, but modifying and remanding for the limited purpose of correcting the written
judgment).

                                              13
