        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                United States Court of Appeals

                                No. 16-41556
                                                                         Fifth Circuit

                                                                       FILED
                              Summary Calendar                     June 22, 2017
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


             Plaintiff - Appellee

v.

MARTIN FRANCO-GALVAN,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:16-CR-613-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:
      Marco Franco-Galvan pleaded guilty to illegal reentry after being
deported from the country. He argues that the district court miscalculated the
applicable Guidelines range. Before he was ordered removed for the first time,
Franco-Galvan committed aggravated assault, and a Texas court imposed
thirty days in jail and ten-years deferred adjudication probation.          After the
order of removal, a Texas court revoked his probation and sentenced him to
fifteen years in prison. To make a key Guidelines calculation, the district court
treated his pre-deportation conviction as carrying the long prison sentence,
rather than the term of probation. Under the Guideline that used to apply to
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illegal reentry offenses, only the term of probation would be considered. United
States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010). The Guideline was
recently changed and we have to decide whether that change requires a
different result. Concluding it does not, we vacate Franco-Galvan’s sentence
and remand for resentencing.
                                       I.
      In August 2005, Franco-Galvan sustained a Texas aggravated assault
conviction for which he was sentenced to 10 years of deferred adjudication
probation (with 30 days in jail as a condition of probation). This occurred
before he was ordered removed for the first time in September 2005. He came
back after removal. In January 2007, a Texas court convicted him of the
misdemeanor offense of driving while intoxicated. That same month, due to
this new state offense, the district court revoked his probation, adjudicated him
guilty, and sentenced him to fifteen years in prison. Upon release from that
sentence, he was deported again to Mexico.
      Franco-Galvan came back again resulting in the case we are considering.
He pleaded guilty to illegal reentry, and his sentencing hearing was held last
November using the 2016 version of the Guidelines.           His sentence was
determined as follows. The court began with a base offense level of eight. It
then added ten levels pursuant to section 2L1.2(a)(2)(A) for “a conviction for a
felony offense . . . for which the sentence imposed was five years or more”
sustained before he was ordered removed. It then subtracted three levels for
acceptance of responsibility. In tandem with his criminal history category of
III, this calculation resulted in a Guidelines range of twenty-four to thirty
months imprisonment.
      Franco-Galvan objected to the ten-level increase. He thought that he
should instead receive a four level increase pursuant to section 2L1.2(a)(2)(D)
for “a conviction for any other felony offense” sustained before he was ordered
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removed. He reasoned that, prior to the removal order, he was only sentenced
to thirty days in jail and a term of probation and that the fifteen-year sentence
upon revocation only came after the removal order. If subsection (a)(2)(D) were
applied rather than subsection (a)(2)(A), his Guidelines range would be ten to
sixteen months imprisonment.
        Although the district court rejected Franco-Galvan’s Guidelines
argument, it sentenced him below the range to eighteen months in prison.
Franco-Galvan appeals.
                                                 II.
        Interpreting a previous version of section 2L1.2, we held that district
courts should look to the original sentence of probation imposed prior to the
defendant’s deportation order and not any prison sentence imposed upon
revocation that followed the order. Bustillos-Pena, 612 F.3d at 868–69. The
government has taken the position that the 2016 amendment to section 2L1.2
abrogated Bustillos-Pena. This appeal then is ultimately about whether the
2016 amendments to section 2L1.2 changed the Guidelines enough to permit
revisiting our prior case.
        When Bustillos-Pena was decided, the portion of section 2L1.2 at issue
read as follows: “If the defendant previously was deported, or unlawfully
remained in the United States, after—(A) a conviction for a felony that is (I) a
drug trafficking offense for which the sentence imposed exceeded 13 months
. . . increase by 16 levels . . . .” 1 U.S.S.G., § 2L1.2(b)(1) (2008). Confronting this
language, we decided that the provision was ambiguous and, in light of the rule
of lenity, did not include prison time given upon revocation of probation after
the defendant’s prior removal. Bustillos-Pena, 612 F.3d at 868–69. A number



        1   A number of other offenses apart from drug trafficking were also listed in the omitted
text.
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of other circuits came to the same conclusion, though a smaller number
disagreed. Compare United States v. Lopez, 634 F.3d 948 (7th Cir. 2011)
(reaching the same conclusion but holding that there was no need to invoke
the rule of lenity to do so), United States v. Rosales-Garcia, 667 F.3d 1348 (10th
Cir. 2012), and United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000),
with United States v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004).
      In the 2012 amendments, the Sentencing Commission recognized the
divide among the circuits and issued an amendment siding with the majority—
expressly announcing this intention in the accompanying notice. U.S.S.G.,
amend. 764 (2012).      The amendment altered the definition of “sentence
imposed” in the commentary to include the italicized text:
      “Sentence imposed” has the meaning given the term “sentence of
      imprisonment” in Application Note 2 and subsection (b) of § 4A1.2
      (Definitions and Instructions for Computing Criminal History),
      without regard to the date of the conviction. The length of the
      sentence imposed includes any term of imprisonment given upon
      revocation of probation, parole or supervised release, but only if the
      revocation occurred before the defendant was deported or
      unlawfully remained in the United States.
U.S.S.G. § 2L1.2 cmt. (n.1)(B)(vii) (2012) (emphasis supplied).
      In 2016, the Sentencing Commission made far more extensive changes
to the section. U.S.S.G. amend. 802 (2016). In place of the old system of
looking at the type of felony that the defendant had committed prior to
removal, the Commission directed that the length of the defendant’s felony
sentence be considered instead. U.S.S.G. § 2L1.2(b)(2). It also introduced a
new subsection that provided for enhancements based on offenses committed
after the defendant was ordered deported. Id. § 2L1.2(b)(3). Additionally, the
amendment altered the phrasing of the subsection for convictions sustained
prior to the defendant’s first order of deportation. It now reads: “If, before the
defendant was ordered deported or ordered removed from the United States

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for the first time, the defendant sustained—(A) a conviction for a felony offense
(other than an illegal reentry offense) for which the sentence imposed was five
years or more, increase by 10 levels . . . .” Id. § 2L1.2(b)(2).
      As the government emphasizes, the Sentencing Commission also deleted
the language (italicized above) that the 2012 amendment had added to the
definition of “sentence imposed.” The commentary now reads:
      “Sentence imposed” has the meaning given the term “sentence of
      imprisonment” in Application Note 2 and subsection (b) of § 4A1.2
      (Definitions and Instructions for Computing Criminal History).
      The length of the sentence imposed includes any term of
      imprisonment given upon revocation of probation, parole, or
      supervised release.
U.S.S.G. § 2L1.2 cmt. (n.2) (2016). The Sentencing Commission did not address
this deletion in the notice accompanying the amendment. U.S.S.G. amend. 802
(2016).
      The government argues that this court should no longer follow Bustillos-
Pena. Its first contention is that the current language on prior convictions
“reads more succinctly than any preceding version” and replaced the word
“after” for the word “before” to describe the conviction—deportation sequence.
But mere changes in phrasing that leave the logic of a provision intact are not
the substantive changes in law that justify departing from the decision of a
prior panel.
      The government’s second contention similarly relies on the substitution
of the word “before” for the word “after.” It argues that the current text uses
the word “conviction” to fix the key event that must come before the order of
deportation to trigger subsection 2L1.2(b)(2). This argument was previously
considered when the text spoke of deportation occurring “after” the
“conviction.” At that time, it was adopted by the dissent in Bustillos-Pena but
not accepted by the majority. Bustillos-Pena, 612 F.3d at 870 (Clement, J.,

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dissenting). Rearranging the sentences and substituting “before” for “after”
does not add to the force of this argument that a prior panel rebuffed.
      The government’s points about the emendations and additions to the text
notably do not touch the reasoning relied upon by this court in Bustillos-Pena.
First of all, we began in Bustillos-Pena with the assumption that the “purpose
of the sixteen-level enhancement is to ensure that a defendant who reenters
the United States illegally after having committed a serious crime is punished
more severely than a defendant who reenters the country illegally without
having committed a serious crime.” Id. at 867. We also accepted that the
“seriousness of a defendant’s previous crime is measured by looking at the type
of conviction and the length of the sentence he received.” Id. We concluded,
“Illegal reentry by a defendant who received a probated sentence is not as great
a cause for concern as illegal reentry by a defendant who was given an actual
sentence of imprisonment for the same offense, because the probated
defendant’s offense was not deemed to be as serious by the court of conviction.”
Id. To conclude otherwise would be counterintuitive, we reasoned, because the
enhancement is “designed to reflect the nature of a defendant’s illegal reentry
offense” and not “unrelated conduct that occurred long after the reentry.” Id.
In other words, a defendant who was deported after committing a more serious
crime (as judged by the initial sentence) is committing a graver crime by
returning unlawfully than a defendant who committed a less serious crime
prior to being deported. See Lopez, 634 F.3d at 951 (“Our interpretation of the
guideline is consistent with both the purpose behind the enhancement and the
larger goal of consistent application of the Sentencing Guidelines. Defendants
who reenter the country illegally after having committed more serious drug
trafficking crimes should be punished more severely than defendants who
reenter the country illegally after having committed less serious drug
trafficking crimes.”).
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      Second of all, we were also concerned in Bustillos-Pena about
inconsistencies that might arise from a contrary decision. We noted that a
“defendant who was sentenced to probation and deported, and who later
reentered illegally, could have his probation revoked by state authorities if
they discovered that he had reentered illegally.” Bustillos-Pena, 612 F.3d at
868. On the government’s reading, such a defendant, prosecuted for illegal
reentry, would then be susceptible to a stiff enhancement founded on the prison
sentence entered upon revocation. Id. In the meantime, “a defendant with an
identical criminal history who also illegally reentered, but was fortunate
enough to be apprehended by ICE before the state authorities, would have a
much lower sentence for his guideline range, even if the state later revoked his
probation based on his federal conviction.” Id. The Seventh Circuit “shared
these concerns,” Lopez, 634 F.3d at 952, as did the Sentencing Commission
when it issued the 2012 amendments, U.S.S.G. amend. 764, at 26–27.
      It is true that we now have subsection 2L1.2(b)(3), covering criminal
conduct after the defendant’s first deportation order, in addition to the
longstanding focus of subsection 2L1.2(b)(2) on convictions and sentences
sustained prior to the first deportation order. In assessing the nature of a
defendant’s illegal reentry defense, the Commission now wants district courts
to look at post-deportation conduct as well. The Commission, however, gave
its new instruction differently, making the operative time the point when “the
defendant engaged in criminal conduct” rather than when “the defendant
sustained a conviction.” This means that the addition of subsection 2L1.2(b)(3)
can be squared with Bustillos-Pena.         It is only criminal conduct after a
deportation order, resulting in a conviction, that is treated as altering the
nature of the offense; it remains the case that the contribution of a conviction
sustained prior to the deportation order to the seriousness of the illegal reentry
offense is to be assessed based on the original, pre-deportation sentence, not a
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sentence issued upon revocation post-deportation (which may have resulted
from conduct that was not criminal but a violation of probation such as failure
to report).
      The government’s most compelling point is that the Commission deleted
the language, “but only if the revocation occurred before the defendant was
deported or unlawfully remained in the United States,” from the commentary.
It argues that the Commission must have deleted it for a reason: “The current
deletion of the . . . timing language can be no accident given the circuit conflict
caused by the absence of the language prior to 2012.” When it issued the 2016
amendments, the Commission said nothing about deleting this particular
language. Rather, it spoke of three primary concerns motivating the overall
changes: (1) replacing the categorical approach for evaluating the seriousness
of collateral offenses with instructions to consider the length of the sentence
imposed; (2) reducing the size of the enhancements for collateral offenses; and
(3) taking into account criminal conduct after a defendant’s first order of
deportation.
      It is sometimes said that silence speaks volumes, but it does not speak
loudly enough in this case to convince us that the Commission changed its
mind and no longer agrees with Bustillos-Pena. The mystery surrounding the
disappearing language does not compel the conclusion that we are witnessing
a policy shift. When the Commission resolved the circuit split in 2012, it
plainly announced its intention to do so. If the Commission has now thought
better of its previous decision, we would expect to see a comparable
announcement. The deletion of the commentary might be explained by the
addition of post-removal criminal history to the Guideline, so that the
Commission thought this issue might no longer arise.                As this case
demonstrates, however, it still does when a defendant is convicted and
sentenced before the initial removal and then has probation revoked after
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removal. Regardless of the unexplained reason for deleting the commentary,
what remains for our interpretation is language in the Guideline not
meaningfully different from that we interpreted in Bustillos-Pena. And we
reached that decision without any clarifying commentary from the
Commission. Although this is a close call, the arguments the government
raises are not enough to compel us to read substantially similar language
different from how we have already interpreted it.
                                     III.
      The government argues that any error in applying the Guidelines was
harmless. It emphasizes that the district court varied below the Guidelines
range. This fact is insufficient for the government to carry its burden of
demonstrating harmless error. See United States v. Martinez-Romero, 817
F.3d 917, 924 (5th Cir. 2016) (holding that the government “must compellingly
prove that the district court would have imposed a sentence outside the
properly calculated sentencing range for the same reasons it provided at the
sentencing hearing”). That the district court was willing to sentence below
what it believed was the correct Guidelines range is no guarantee that it would
be willing to sentence above the true range. That is especially true when the
eighteen month sentence the court imposed was above the ten-to-sixteen
month range that should have applied. And the record here is devoid of the
kind of statements from the district court that indicate it would impose the
same sentence regardless of whether it correctly sustained the defendant’s
objection to its Guidelines calculation. See United States v. Huskey, 137 F.3d
283, 289 (5th Cir. 1998) (explaining that 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.”).




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                              ***
     We VACATE the sentence and REMAND to the district court for
resentencing.




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