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

                                                                            FILED
                                                                            May 8, 2008

                                       No. 06-20193                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant,
v.

NORMA GONZALEZ SANCHEZ, also known as Norma Gonzalez Campos,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-CR-221-9


      ON REMAND FROM THE UNITED STATES SUPREME COURT

Before KING, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       This case returns to us on remand from the Supreme Court for further
consideration in light of the Court’s decision in Gall v. United States, 128 S. Ct.
586 (2007).
       Before the district court, Norma Gonzalez Sanchez (“Sanchez”) pleaded
guilty to one count of conspiracy to transport undocumented aliens within 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 06-20193

United States, in violation of 8 U.S.C. § 1324. We assume familiarity with our
prior decision in this case, United States v. Sanchez, 484 F.3d 803 (5th Cir.
2007), which fully articulates the relevant background to Sanchez’s offense.
However, for ease of understanding, we include the following selection from our
prior decision:
             On May 14, 2003, state and federal authorities discovered an
      abandoned refrigeration trailer near a truck stop in Victoria, Texas.
      Inside and around the opened trailer were the bodies of seventeen
      deceased individuals. Two others found near the trailer later died
      at an area hospital. The ensuing criminal investigation uncovered
      a large-scale alien smuggling network operating out of the Rio
      Grande Valley. Comprising the network were various smuggling
      organizations, each with its own network of participants who were
      responsible for transporting aliens to the Mexico/United States
      border, facilitating their illegal entry into the United States,
      harboring them temporarily in drop-houses throughout the Rio
      Grande Valley, and arranging transportation for them to various
      locations north of the Border Patrol checkpoints and into the
      interior of the United States. Investigators discovered that Karla
      Patricia Chavez-Joya (“Chavez”), who headed one of the smuggling
      organizations, would coordinate the pooling of the other smuggling
      organizations and arrange for the bulk transport of aliens inside
      tractor-trailer rigs. Investigators further determinated that on May
      13, 2003, at least seventy-three undocumented aliens had been
      secreted in the trailer found in Victoria, which had been part of a
      tractor-trailer rig driven by a member of the alien smuggling
      conspiracy from Harlingen, Texas to Victoria. Autopsies of the
      nineteen aliens who died revealed that they had all succumbed to
      hyperthermia, suffocation, and dehydration due to the deplorable
      conditions inside the trailer.

            Sanchez was identified as a participant in the trafficking
      operation. Investigators learned that Sanchez owned and operated
      a restaurant in Houston, Texas, where she would meet with
      individuals to discuss arrangements and collect fees for smuggling
      their relatives into the United States. She would forward some
      portion of the fees to her contacts in the Rio Grande Valley
      smuggling operation, with whom she would then work to coordinate
      the transportation of her clients’ relatives. Investigators further


                                       2
                                  No. 06-20193

      discovered that it was Sanchez who had arranged for the smuggling
      of two of the undocumented aliens transported in the abandoned
      trailer: Faviola Angelica Gonzalez-Buendia (“Gonzalez”) and
      Elisendo Cabañas (“Cabañas”). Cabañas was one of the nineteen
      aliens who died.
Sanchez, 484 F.3d at 806–07 (footnote omitted).
      The district court calculated Sanchez’s applicable sentencing range at 57
to 71 months. Id. at 809. After hearing the parties’ arguments, the district court
sentenced Sanchez to 30-months imprisonment, which the court altered to “time
served” after learning that Sanchez had already served 33 months. Id. at
809–10. The government appealed. We entered a judgment vacating the
sentence and remanding for resentencing because the district court’s sentence
unreasonably failed to reflect the statutory sentencing factors set forth in 18
U.S.C. § 3553(a). Id. at 806.
      In our prior decision, we identified five defects in the district court’s
sentence. To begin, we noted that the district court’s reasoning reflected “at
least two clearly erroneous factual determinations.” Id. at 811. First, we
concluded that the record did not support the district court’s finding that the
offense in this case involved “multiple conspiracies,” rather than the single
conspiracy charged in the indictment. Id. at 811–12. Second, because the record
did not support the multiple conspiracy finding, we further concluded that the
district court clearly erred in relying on Sanchez’s purported participation in a
lesser conspiracy to find that certain consequences of the overarching
conspiracy—the death of some aliens as a result of the dangerous methods used
to smuggle them into the country—were not reasonably foreseeable to her. Id.
at 812. We held that these clearly erroneous factual determinations infected the
district court’s balancing of the § 3553(a) factors, thus providing an insufficient
basis for imposing a non-Guidelines sentence. Id.




                                        3
                                  No. 06-20193

      As a third defect, we noted the possibility that the district court
misinterpreted an applicable sentencing enhancement, U.S.S.G. § 2L1.1(b)(6),
(4) (2004). The 2004 version of that enhancement provided for an 8-level
increase in the offense level for alien smuggling “[i]f any person died.”
§ 2L1.1(b), (6). We stated that under this enhancement “Sanchez was not being
held accountable for nineteen deaths; she was being held accountable for only
one.” Sanchez, 484 F.3d at 813. Thus, to the extent that the district court
deviated from the Guidelines range—and this enhancement—on the basis that
Sanchez could not have foreseen the deaths of eighteen additional aliens, this
was not a sufficient justification for deviating from the Guidelines range, which
specifically accounted for only one of those deaths. Id. at 812–13.
      Fourth, we stated that the district court erred by failing to give sufficient
weight to the “history and characteristics of the defendant,” as required by 18
U.S.C. § 3553(a)(1). Sanchez, 484 F.3d at 813. Fifth, we stated that the district
failed adequately to consider whether the sentence it imposed would create
significant disparities between Sanchez and other similarly situated defendants,
see § 3553(a)(6). Sanchez, 484 F.3d at 813.
      The Supreme Court granted Sanchez’s petition for writ of certiorari,
vacated this court’s judgment, and remanded the case to us for further
consideration in light of Gall. We have carefully reconsidered our prior decision
in light of Gall and, for the following reasons, reenter our judgment, vacating the
sentence, and remanding for resentencing.
      Our “review of sentencing decisions is limited to determining whether they
are ‘reasonable.’” Gall, 128 S. Ct. at 594. We review the district court’s
sentence, regardless of whether the sentence imposed is inside or outside the
Guidelines range, under a deferential abuse-of-discretion standard. Id. at 597.
Our review proceeds in two parts.



                                        4
                                  No. 06-20193

      First, we examine the sentence to ensure that the district court
“committed no significant procedural error.” Id. Such procedural errors include
“failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the
Guidelines range.” Id. At this first stage of the inquiry, we continue to review
the “district court’s interpretation or application of the Sentencing
Guidelines . . . de novo, and its factual findings . . . for clear error.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      Second, assuming the district court’s sentencing decision is procedurally
sound, we “then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 128 S. Ct. at 597. In
doing so, we “take into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id. We may not apply a
presumption of unreasonableness to a sentence imposed outside the Guidelines
range. Id. Rather, “we must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id.
Our reasonable disagreement with the sentence imposed is insufficient to justify
reversal of the district court. Id.
      Applying Gall to the defects identified in our prior decision, we conclude
that the district court’s clearly erroneous factual determinations infected the
sentence and constitute significant procedural errors that warrant vacating the
sentence and remanding for resentencing.         See Gall, 128 S. Ct. at 597
(identifying “selecting a sentence based on clearly erroneous facts” as one
example of “significant procedural error”). As to the remaining errors identified
in our prior decision and outlined above, we decline to decide whether those
errors, standing alone, would lead us to conclude that the district court abused

                                       5
                                  No. 06-20193

its discretion in sentencing. However, we remind the district court on remand
of the following:
      If [the district court] decides that an outside-Guidelines sentence is
      warranted, [the court] must consider the extent of the deviation and
      ensure that the justification is sufficiently compelling to support the
      degree of the variance. We find it uncontroversial that a major
      departure should be supported by a more significant justification
      than a minor one. After settling on the appropriate sentence, [the
      court] must adequately explain the chosen sentence to allow for
      meaningful appellate review and to promote the perception of fair
      sentencing.
Gall, 128 S. Ct. at 597.
      We therefore VACATE the sentence and REMAND for resentencing.




                                        6
