     Case: 10-50161 Document: 00511478407 Page: 1 Date Filed: 05/16/2011




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

                                                                             FILED
                                                                            May 16, 2011
                                     No. 10-50161
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

AGUSTIN RODRIGUEZ-BAZA,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CR-603-1


Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Agustin Rodriguez-Baza appeals his sentence following his guilty plea
conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. At
sentencing, the district court found that Rodriguez-Baza’s second state
conviction for possession of a controlled substance constituted an aggravated
felony and enhanced his sentence by eight offense levels.                     See U.S.S.G.
§ 2L1.2(b)(1)(C). The district court ultimately sentenced Rodriguez-Baza to 33




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-50161 Document: 00511478407 Page: 2 Date Filed: 05/16/2011

                                  No. 10-50161

months of imprisonment, which is within the calculated guidelines range of 33
to 41 months.
      The Government, however, concedes that the district court improperly
applied the aggravated felony enhancement in light of the Supreme Court’s
opinion in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). In Carachuri-
Rosendo, the Supreme Court held that a second state offense for simple drug
possession is not an aggravated felony if that conviction “has not been enhanced
based on the fact of a prior conviction.” 130 S. Ct. at 2589. Here, the record does
not establish that Rodriguez-Baza was convicted of a second possession of
cocaine offense under a recidivist statute or that the conviction was based on his
prior conviction; thus, the district court erred in applying the aggravated felony
enhancement. See id. Rodriguez-Baza argues that, without the aggravated
felony enhancement, his correct guidelines sentencing range would have been
24 to 30 months. The Government contends that we need not vacate Rodriguez-
Baza’s sentence because the guidelines calculation error was harmless.
Specifically, the Government argues that the district court imposed an
alternative non-guidelines sentence.
      We have held that a guidelines calculation error is harmless if the district
court has considered the correct range in its analysis and has stated that it
would impose the same sentence even if that range applied. United States v.
Duhon, 541 F.3d 391, 396 (5th Cir. 2008). In Rodriguez-Baza’s case, there is no
indication in the record that the district court considered the correct guidelines
range. However, we recently held that a guidelines calculation error can be
harmless even if the district court has not considered the correct range. United
States v. Ibarra-Luna, 628 F.3d 712, 716-18 (5th Cir. 2010). The Government
must “convincingly demonstrate that the court actually would have followed the
very same reasoning absent the error” and “must show that the . . . sentence the
district court imposed was not influenced in any way by the erroneous
Guidelines calculation.” Id. at 717-19 (emphasis in original).

                                        2
      Case: 10-50161 Document: 00511478407 Page: 3 Date Filed: 05/16/2011

                                 No. 10-50161

       Rodriguez-Baza’s 33-month sentence was at the bottom of the incorrectly
calculated guidelines range of 33-41 months. If the district court had considered
the correct guidelines range of 24-30 months, Rodriguez-Baza’s 33-month
sentence would have represented either an upward departure or an upward
variance from the guidelines range. Although the district court stated that the
33-month sentence was reasonable even without the Guidelines, we conclude
that the Government has not convincingly demonstrated that, if the district
court had considered the correct guidelines range, it would have relied on the
same reasons to impose a 33-month sentence. See Ibarra-Luna, 628 F.3d at 717-
19.
       Therefore, we VACATE Rodriguez-Baza’s sentence and REMAND for
resentencing consistent with this opinion.




                                       3
