     Case: 17-20605      Document: 00514511698         Page: 1    Date Filed: 06/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                    No. 17-20605
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                         June 13, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

EDDIE VARELA MALDONADO, also known as Efren Cundumi,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-361-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Eddie Varela Maldonado, also known as Efren Cundumi, 1 appeals the
36-month sentence imposed following his guilty plea conviction for illegal
reentry after removal in violation of 8 U.S.C. § 1326. Cundumi argues that the
sentence imposed is procedurally unreasonable because the district court
relied on clearly erroneous facts. He contends that, contrary to the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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 Maldonado’s true name is Efren Cundumi Vente (Cundumi), as he so refers to
himself in his brief.
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                                  No. 17-20605

court’s apparent belief at sentencing, he had been deported and returned to the
United States illegally only once, and that he had not engaged in other criminal
conduct subsequent to his deportation and return. He also asserts that the
sentence imposed is substantively unreasonable.
      We engage in a two-part process when reviewing a sentence. First, we
consider whether the sentencing court committed procedural error. See Gall
v. United States, 552 U.S. 38, 51 (2007). Relevant to this case, procedural error
includes imposing a sentence on the basis of clearly erroneous facts. Id. “A
procedural error during sentencing is harmless if the error did not affect the
district court’s selection of the sentence imposed.” United States v. Delgado–
Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (internal quotation marks and
citation omitted). The error must have affected the court’s selection of the
sentence, and the Government has the burden of showing “that the district
court had a particular sentence in mind and would have imposed it,
notwithstanding the error made.” Id. If there is no procedural error, or if the
error is harmless, we then consider the substantive reasonableness of the
sentence. Id. The district court’s factfinding is reviewed for clear error. United
States v. Gutierrez–Hernandez, 581 F.3d 251, 254 (5th Cir. 2009).
      When giving reasons for the sentence imposed, the district court denied
Cundumi’s request for a downward departure, stating that
      part of the reason is that I believe the Defendant’s heart is
      hardened in this matter and he is intent on coming back to this
      country every chance he gets, and on each occasion that he’s been
      here he has violated not simply the immigration law - that is, you
      know, is here illegally - but he has engaged in other conduct, and
      that suggests to me that his crimes are greater than what is
      represented by the immigration violation.

      Both parties agree that the district court correctly calculated the
advisory guideline range under the applicable guidelines. The Government



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                                 No. 17-20605

agrees that it is appropriate to vacate and remand for resentencing because
the district court made statements suggesting that the court mistakenly
believed Cundumi had returned to the United States illegally more than once
and had committed new crimes each time he returned.
      The district court’s statement was factually incorrect with respect to how
many times Cundumi had been deported and his criminal history after reentry.
Although counsel called attention to the error, the district court merely noted
the objection without further comment. Thus, the district court committed a
procedural error by imposing a sentence on the basis of clearly erroneous facts.
See Gall, 552 U.S. at 51. Because the Government has not shown that the
error had no effect on the length of the sentence, the error is not harmless.
See Delgado–Martinez, 564 F.3d at 753-54.          Accordingly, we VACATE
Cundumi’s sentence and REMAND for resentencing. We do not reach his
argument that his sentence is substantively unreasonable.




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