                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  December 5, 2007
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 06-2211
          v.                                           (D. New Mexico)
 JUAN EDUARDO MARQUEZ,                            (D.C. No. CR-06-563-JC)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Juan Eduardo Marquez pled guilty to reentry of a

deported alien previously convicted of an aggravated felony, in violation of

8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). He was sentenced to forty-six months’


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
imprisonment, followed by two years of supervised release. He appeals his

sentence, which we reverse and remand for resentencing.



                                 BACKGROUND

      Marquez was arrested by United States Border Patrol agents on January 4,

2006. He admitted that he was a citizen of Mexico, and that he had no

authorization to reside in the United States. Immigration records established that

he had previously been deported in 1997 and 1999, and that he was convicted in

Texas in 1987 of attempted burglary of a habitation, which resulted in a sentence

of ten years probation. As indicated, Marquez then pled guilty to reentry by a

deported alien previously convicted of an aggravated felony. As we explain

further below, however, Marquez’s prior conviction for attempted burglary was

not, in fact, an aggravated felony.

      In preparation for his sentencing, the United States Probation Office

prepared a presentence report (“PSR”). The PSR recommended that Marquez

receive a sixteen-level enhancement to his base offense level under the United

States Sentencing Commission, Guidelines Manual (“USSG”) (2005), based upon

his prior conviction for attempted burglary of a habitation which, under USSG

§ 2L1.2(b)(1)(A), qualified as a “crime of violence.” The PSR then calculated a

total offense level of twenty-one which, with a criminal history category of III,

resulted in an advisory sentencing range under the USSG of forty-six to fifty-

                                        -2-
seven months. Because Marquez’s prior conviction for attempted burglary was

erroneously characterized as an aggravated felony, the PSR also stated,

erroneously, that the applicable statutory prison term was up to twenty years.

      Marquez filed a sentencing memorandum requesting a variance from the

advisory Guideline range on the basis of the sentencing factors contained in 18

U.S.C. § 3553(a). He essentially argued that his prior crime, attempted burglary

of a habitation, was non-violent and occurred twenty years before, and he lacked

any other criminal history. Marquez also argued that he had “resigned himself to

the fact” that he would have to return to Mexico and never be permitted to legally

return to the United States. Sentencing Mem. at 3, R. Vol. I. He did not,

however, argue that his prior conviction had been erroneously classified as an

aggravated felony which exposed him to a twenty-year statutory term of

imprisonment.

      At his sentencing hearing, Marquez’s counsel reiterated his request for a

lower sentence than that provided by the advisory Guidelines. In response to

Marquez’s request that the court “consider the [sentencing] memorandum and the

requests made therein,” the court responded, “I have considered it, and nothing

about the sentence I’m going to give him causes me any problems.” Tr. of

Sentencing Hr’g at 2-3, R. Vol. III. The district court then stated:

      The Court has reviewed the Presentence Report factual findings and
      has considered the sentencing guideline applications and the factors
      set forth in [18 U.S.C. §] 3553(a)(1) through (7). The offense level

                                         -3-
      is 21. The criminal history category is III. The guideline
      imprisonment range is 46 to 57 months. The Court notes the
      defendant illegally reentered the United States subsequent to an
      aggravated felony conviction.

Id. at 3. When government counsel inquired, “Was there a departure requested

and [the court] did not depart?” the court responded, “Well, there was a departure

requested. I did not depart.” Id. at 4. When government counsel stated she “just

wanted the record to be clear as to your reasons why,” the court responded,

“Didn’t I say I thought the sentence was fitting?” Id. Marquez was accordingly

sentenced to forty-six months’ imprisonment. Marquez timely appealed his

sentence.

      Marquez’s trial counsel filed an Anders brief, requesting permission to

withdraw from representation of Marquez on appeal because counsel concluded

that an appeal would be frivolous. See Anders v. California, 386 U.S. 738 (1967).

Our court rejected the Anders brief and appointed new counsel. Marquez’s new

counsel filed a brief arguing four issues: (1) the district court erred in classifying

his prior conviction for attempted burglary of a habitation as a conviction for an

aggravated felony; (2) the district court erred in increasing his offense level by

sixteen because such an increase is “capricious and unreasonable under the

§ 3553(a) objectives”; (3) the district court erred in presuming that the Guidelines

sentence was the correct sentence; and (4) this court should “revisit” its decision

in United States v. Gonzalez-Coronado, 419 F.3d 1090 (10th Cir. 2005), in which


                                          -4-
we cited approvingly to United States v. Pimentel-Flores, 339 F.3d 959 (9th Cir.

2003), which held that, under USSG §2L1.2(b)(1)(A)(ii), a “‘crime of violence’

need[] only . . . be a ‘felony’ as defined in the application notes [to the

Guidelines]—and not an ‘aggravated felony’ as statutorily defined—to qualify for

a 16-level enhancement.” Id. at 963.



                                    DISCUSSION

      “[W]e review sentencing decisions for reasonableness, which has both

procedural and substantive components.” United States v. Atencio, 476 F.3d

1099, 1102 (10th Cir. 2007). “In setting a procedurally reasonable sentence, a

district court must calculate the proper advisory Guidelines range and apply the

factors set forth in § 3553(a).” Id. “A substantively reasonable sentence

ultimately reflects the gravity of the crime and the § 3553(a) factors as applied to

the case.” Id. Further, while we review the ultimate sentence for reasonableness,

“we continue to review the district court’s application of the Guidelines de novo,

and we review any factual findings for clear error.” United States v. Townley,

472 F.3d 1267, 1275-76 (10th Cir.), cert. denied, 127 S. Ct. 3069 (2007). Finally,

“[w]here the district court correctly applies the Guidelines and imposes a sentence

within the applicable Guidelines range, that sentence is entitled to a rebuttable

presumption of reasonableness.” Id. at 1276 (internal quotation marks omitted).




                                           -5-
      As indicated, Marquez pled guilty to being in the United States unlawfully

after having been previously deported, in violation of 8 U.S.C. § 1326(a). “The

penalties for reentering the country after deportation vary widely depending upon

an alien’s criminal history.” Gonzalez-Coronado, 419 F.3d at 1092. “Where the

defendant has no prior criminal history, § 1326(a) provides for a maximum two-

year sentence.” Id. A defendant with a prior felony conviction, however, “is

subject to a maximum ten-year sentence.” Finally, “if the defendant’s prior

felony is an ‘aggravated felony,’ he is subject to a maximum twenty-year

sentence.” Id. See 8 U.S.C. § 1326(a), (b).

      It is undisputed that all parties involved, both government and defense

counsel, the United States Probation Office, and, most importantly, the district

court, erroneously believed that Marquez’s prior conviction for attempted

burglary of a habitation was a conviction for an aggravated felony, thereby

exposing Marquez to a maximum statutory sentence of twenty years. It was error

to treat that conviction as an aggravated felony conviction under 8 U.S.C.

§ 1326(b)(2) because the prior conviction resulted only in probation. Gonzalez-

Coronado, 419 F.3d at 1091. 1

      1
        “To define ‘aggravated felony’ under § 1326(b)(2), this court looks to 8
U.S.C. § 1101(a)(43).” Gonzalez-Coronado, 419 F.3d at 1092-93.
Section 1101(a)(43), in turn, defines an aggravated felony as including “a crime
of violence . . . for which the term of imprisonment [is] at least one year” and “a
theft offense . . . or burglary offense for which the term of imprisonment [is] at
least one year.” 8 U.S.C. § 1101(a)(43)(F) and (G). Since Marquez’s prior
                                                                        (continued...)

                                         -6-
      Marquez failed to object, however, to this characterization of his prior

conviction. “[W]here a defendant raises no contemporaneous objection to the

court’s explanation of the procedure by which his sentence was determined, ‘we

may reverse the district court’s judgment only in the presence of plain error.’”

United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir. 2007) (quoting

United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007)). “We find

plain error only when there is (1) error, (2) that is plain, (3) which affects

substantial rights, and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (further quotation omitted). Applying

plain error analysis, we conclude that the district court’s misunderstanding as to

the nature of Marquez’s prior conviction was plain error, which did affect

Marquez’s substantial rights and seriously affected the fairness of the sentencing

procedure.

      First, as our discussion above indicates and as the government concedes on

appeal (Appellee’s Br. at 3), it was plainly erroneous to treat Marquez’s prior

conviction for attempted burglary as an aggravated felony conviction. 2 Thus,

      1
       (...continued)
burglary conviction resulted in a sentence of probation, it was not an aggravated
felony under § 1326(b)(2). Gonzalez-Coronado, 419 F.3d at 1093.
      2
       We agree with Marquez that it does not matter that he pled guilty to an
information specifically alleging that he violated 8 U.S.C. § 1326(a)(1), (a)(2)
and (b)(2) by reentering the United States following his conviction for an
aggravated felony. The government does not dispute this point by trying to argue
                                                                      (continued...)

                                          -7-
there was error, which was plain. “Satisfying the third prong of plain-error

review—that the error affects substantial rights—‘usually means that the error

must have affected the outcome of the district court proceedings.’” United States

v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (quoting United

States v. Cotton, 535 U.S. 625, 632 (2002)). Marquez, as the appellant, bears the

burden to make that showing. Id. at 733. We conclude that Marquez has met that

burden.

      We initially observe that the district court specifically emphasized that

Marquez “illegally reentered the United States subsequent to an aggravated felony

conviction.” Tr. of Sentencing at 3, R. Vol. III. Thus, the “fact” that Marquez

had a prior aggravated felony conviction was front and center in the district

court’s thought process in imposing a sentence. That erroneously characterized

aggravated felony conviction exposed Marquez to a statutory maximum of twenty

years’ imprisonment, instead of the ten years he faced under the proper

characterization of his prior conviction as simply a felony. Thus, we agree with

Marquez that it is highly likely the district court was less inclined to sentence him

below the advisory Guideline range of forty-six to fifty-seven months, because

the court believed that Marquez was exposed to a twenty-year statutory sentence.


      2
       (...continued)
that Marquez somehow waived his right to object to the erroneous
characterization of his prior conviction because he pled guilty to reentry
following a conviction for an aggravated felony.

                                         -8-
      The government argues that any error is harmless, or had no effect on the

district court’s sentence, because Marquez’s sentence was properly calculated

under the Guidelines and, as Marquez even concedes, his prior conviction was

clearly a “crime of violence” under USSG § 2L1.2(b)(1)(A), which yielded an

advisory Guideline sentencing range of forty-six to fifty-seven months. In so

arguing, the government relies upon Gonzalez-Coronado, 419 F.3d at 1094, where

we held that the district court’s erroneous treatment of the defendant’s prior

conviction as an aggravated felony, rather than a simple felony, was “harmless.”

Id. We so held because “a defendant like Gonzalez who has had a prior felony

conviction, other than an aggravated felony, still faces a maximum ten-year

sentence, which is more than sufficient to support [defendant’s] thirty-seven

month sentence.” Id.

      We believe that the particular facts surrounding Marquez’s sentencing

proceeding suffice to distinguish this case from Gonzalez-Coronado. In this case,

Marquez argued to the district court that he deserved a lower sentence than that

provided by the advisory Guidelines, largely because his prior conviction was a

long time ago, committed when he was twenty years younger, and that he had

essentially no other criminal history, and no violent criminal history, since that

long-ago event. In that situation, the misperception that Marquez had committed

an aggravated felony may well have done more to undermine Marquez’s reasons

for seeking a variance from the Guidelines sentence.

                                         -9-
      Furthermore, while we have stated repeatedly that a district court

sentencing a defendant to a sentence within a properly-calculated Guideline range

need not provide much explanation for its sentencing calculation, we note that the

sentencing proceeding here was extremely terse and conclusory, lasting a mere

four minutes from start to finish. The district court simply stated it rejected

Marquez’s request for a downward departure, without further elaboration.

Indeed, one of the few statements the district court made was its specific

observation that Marquez had a prior aggravated felony conviction.

      Finally, this is one of those cases where a sentence at the bottom of the

Guidelines reinforces our concern that the district court might have sentenced

differently if it was proceeding from the proper premise concerning Marquez’s

criminal history. Thus, in these unique circumstances, we conclude that Marquez

has met his burden of showing that the error, shared by all present, affected the

outcome of his sentencing proceeding. We therefore reverse and remand for

resentencing with the awareness that Marquez’s prior conviction was not for an

aggravated felony. This conclusion means we need not address Marquez’s

remaining three arguments.




                                         -10-
                       CONCLUSION

For the foregoing reasons, we REVERSE and REMAND for resentencing.

                                    ENTERED FOR THE COURT


                                    Stephen H. Anderson
                                    Circuit Judge




                             -11-
