     Case: 15-40385   Document: 00513367792    Page: 1   Date Filed: 02/03/2016




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


                                No. 15-40385
                                                                       FILED
                                                                February 3, 2016
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

                                          Plaintiff-Appellee,
v.

GERARDO MUNOZ-GONZALEZ,

                                          Defendant-Appellant.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and REAVLEY and DAVIS, Circuit Judges.
CARL E. STEWART, Chief Judge:
      Defendant-Appellant Gerardo Munoz-Gonzalez appeals the district
court’s imposition of a 35-month sentence after pleading guilty to illegal
presence following removal. We affirm.
                  I. FACTS & PROCEDURAL HISTORY
      Federal agents detained Munoz-Gonzalez near Hidalgo, Texas in March
2014. In April 2014, he was charged with being unlawfully found in the United
States after being previously deported in violation of 8 U.S.C. § 1326(a)&(b).
He pled guilty without a plea agreement to one count of illegal presence in the
United States following removal. In the initial presentence report (PSR) issued
on October 8, 2014, the probation officer recommended a four-level
enhancement under USSG. § 2L1.2(b)(1)(D) because Munoz was convicted of
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two felony drug offenses in 2008 prior to his removal. 1 Upon further review,
the probation officer issued an addendum to the PSR noting that Munoz-
Gonzalez had been convicted of arson in 1994 for starting a fire in his home
that killed his wife. The revised PSR stated that the arson conviction, though
pardoned in December 2004, justified a 12-level crime of violence enhancement
under § 2L1.2(b)(1)(A)(ii). The 12-level enhancement resulted in a sentencing
range of 30-37 months’ imprisonment. The probation officer recommended 33
months’ imprisonment.
       Munoz-Gonzalez objected that the 12-level enhancement was improper
because the arson conviction was pardoned. He argued that certain offenses
pardoned for reasons of innocence or legal error, along with convictions that
are expunged or invalidated on constitutional grounds, are not counted for
criminal history purposes. He asserted that the enhancement in his case was
improper because the Government failed to show that he was not pardoned for
reasons involving innocence or constitutional error.            As a result, Munoz-
Gonzalez’s February 2015 sentencing hearing was postponed to afford the
probation officer an opportunity to locate the pardon documents pertaining to
the arson conviction.
      The probation officer later produced the pardon documents which
described how the arson conviction had caused Munoz-Gonzalez to be denied
entry into the United States after visiting Mexico. The documents noted that
Munoz-Gonzalez’s daughter intended to petition for him to reenter the United
States legally when she turned eighteen and that he had accepted
responsibility for the arson, had no other criminal history (at that time), and
had proved himself to be a productive member of society following his release


      1  According to the record, Munoz-Gonzalez was first removed from the United States
in 2004. He returned to the United States in 2006 where he stayed until he was removed a
second time in 2012, following his 2008 felony drug convictions.
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                                 No. 15-40385
from prison. The documents explained that a full and unconditional pardon
was granted on December 16, 2004, “for the express purpose of allowing
[Munoz-Gonzalez] the possibility of reentry into the United States.”
      The sentencing hearing was subsequently rescheduled to March 2015
and the district court found that the pardon documents clarified that the
pardon was not granted for reasons of innocence or other constitutional or legal
error. The district court noted that the pardon was clearly granted “for the
purpose[] of helping [Munoz-Gonzalez] at some future date gain legal status in
the United States.” The district court also noted that only a few years after
the pardon was granted, Munoz-Gonzalez was convicted of felony drug
trafficking. The district court reasoned that the enhancement was further
supported by the fact that the arson conviction had not yet been pardoned at
the time of Munoz-Gonzalez’s removal in 2004.
      The district court went on to explain that it was disturbed by the arson
but was “particularly concerned” that Munoz-Gonzalez committed two drug
offenses after returning illegally to the United States following his removal in
2004. In light of the drug offenses and the arson, the district court stated that
it intended to impose a sentence that would protect the public, deter further
criminal conduct, and promote respect for the law. The district court applied
the 12-level crime of violence enhancement, stating that “even if the Court is
in error as to the enhancement there, the Court believes that under all the
circumstances here, and the Court in imposing the sentence that it will impose,
has considered the 3553(a) factors.” See 18 U.S.C. § 3553(a). The district court
then awarded a 3-level deduction for acceptance of responsibility which




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resulted in a Guidelines range of 30 to 37 months. The district court imposed
a sentence of 35 months. 2 Munoz-Gonzalez appeals herein.
                           II. STANDARD OF REVIEW
       We review the sentence imposed for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007).           We first ensure “that the district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.”                Id.   The district court’s
interpretation and application of the Guidelines are reviewed de novo, while
its factual findings are reviewed for clear error. United States v. Hernandez-
Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (citation omitted) (internal quotation
marks omitted). This court thus “considers de novo whether a defendant’s
prior conviction qualifies as a ‘crime of violence’ within the meaning of the
Guidelines.” Id. (citation omitted). If the court finds a significant procedural
error, it must remand for resentencing unless the error was harmless. United
States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).
                                  III. DISCUSSION
       Munoz-Gonzalez’s primary argument on appeal is that the district court
erred by imposing the 12-level crime of violence enhancement for his pardoned
arson conviction. He notes that § 2L1.2 instructs the court to impose the 12-
level enhancement if he “previously was deported . . . after a conviction for a
felony that is . . . a crime of violence.” He submits that “conviction” is not
defined and that neither § 2L1.2 nor its commentary discuss whether a
pardoned offense is to be considered a “conviction” for purposes of the
enhancement.        He concludes that the ambiguity concerning the term
“conviction” in § 2L1.2 should be construed in his favor. We disagree.



       2 The district court granted Munoz-Gonzalez’s request to run the sentence
concurrently with any sentence imposed upon revocation of his parole in the state drug cases.
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                                  No. 15-40385
      The Supreme Court has long recognized that pardoned offenses may be
used for sentencing enhancement purposes. Carlesi v. New York, 233 U.S. 51,
59 (1914). The Court in Carlesi held that a presidential pardon of a federal
crime does not restrict or limit “the power of [a state] to punish crimes
thereafter committed against its authority, and in so doing to prescribe such
penalties as may be deemed appropriate in view of the nature of the offense
and the character of the offender, taking in view his past conduct[.]” Id. at 59.
Furthermore, this court has recognized that:
      A pardon for any other reason than subsequent proof of innocence
      does not obliterate the defendant’s previous transgressions
      particularly as they may bear on his present character and
      veracity. Any number of reasons may lie behind the granting of an
      executive pardon, but the granting of a pardon does not itself
      indicate any defect in previous convictions. Neither does it negate
      any bearing that they may have on present credibility.

See Watkins v. Thomas, 623 F.2d 387, 388 (5th Cir. 1980) (quoting Gurleski v.
United States, 405 F.2d 253, 266 (5th Cir. 1968)).
      As noted by the district court, the pardon documents do not call into
question Munoz-Gonzalez’s guilt or expunge his conviction. Rather, the pardon
was granted for the sole purpose of assisting Munoz-Gonzalez in gaining legal
status in the United States at some later date. Further, as noted by the district
court, Munoz-Gonzalez was convicted of felony drug trafficking just a few years
after the pardon was granted. Additionally, as the pardon had not yet been
granted at the time of removal, Munoz-Gonazalez’s argument regarding
whether pardoned offenses qualify under the definition of “conviction” as
applied in § 2L1.2 also fails. The district court emphasized that, in light of the
drug offenses and the arson, its intentions were to impose a sentence that
would protect the public, deter further criminal conduct, and promote respect
for the law. The district court acknowledged that, even if it had erred in

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                                    No. 15-40385
applying the enhancementand we do not hold that it didit would have
nevertheless imposed the same sentence in light of its consideration of the
3553(a) factors. See 18 U.S.C. § 3553(a).
      In light of this court’s precedent, as informed by Carlesi, holding that a
pardon granted for reasons other than proof of innocence does not vitiate the
defendant’s prior crimes or convictions, Watkins, 623 F.2d at 388, we hold that
the district court did not err in applying the 12-level crime of violence
sentencing enhancement under USSG § 2L1.2(b)(1)(A)(ii), for the 1994
pardoned arson conviction. See Hernandez-Galvan, 632 F.3d at 196.
                                  IV. CONCLUSION
      For the aforementioned reasons, we affirm the sentence imposed by the
district court in all respects.




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