United States v. Alberto Vasquez-Tovar, 420 F. App'x 383

Vasquez-Tovar appealed a 70-month sentence imposed after a guilty plea to illegal reentry under 8 U.S.C. § 1326.
The Government concedes the district court improperly applied a 16-level crime of violence enhancement to the guideline base offense level.
The Government argues the error is harmless because the district court expressed the range was reasonable and would have imposed the same sentence.
The district court did not clearly show it considered the correct guidelines range absent the enhancement.
The court’s reasoning in light of Bonilla is not dispositive because the court did not demonstrate it would have chosen the same sentence without the miscalculation.
The Fifth Circuit vacates the sentence and remands for resentencing consistent with its ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the misapplied enhancement was harmless	Vasquez-Tovar	Vasquez-Tovar	Not harmless; remanded
Whether the district court considered the correct guidelines range	Vasquez-Tovar	Vasquez-Tovar	Not shown to have considered correct range
Whether Ibarra-Luna disclosures satisfy harmlessness	Vasquez-Tovar	Vasquez-Tovar	Cannot satisfy second requirement; not harmless
Whether the sentence should be vacated and remanded for resentencing	Vasquez-Tovar	Vasquez-Tovar	Sentence vacated and remanded

United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) (guideline error not harmless per se)
United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008) (harmless error via district court’s stated reasoning)
United States v. Duhon, 541 F.3d 391 (5th Cir. 2008) (harmless error analysis requires consideration of correct range and same sentence)
United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010) (two-part test; requires sentence not influenced by miscalculation)
United States v. Torres-Aguilar, 352 F.3d 934 (5th Cir. 2003) (waiver of requests for different district judge resentence)