536 F. App'x 461
5th Cir.2013Background
- Torres-Ibarra appeals a 48-month non-guidelines sentence for illegal reentry after pleading guilty.
- He challenges the district court's criminal history calculation, asserting four points under § 4A1.1(a) and (d) for a 2009 marijuana conviction.
- Specifically, he argues the court erred by applying three points for the 2009 conviction and by applying two points under § 4A1.1(d), based on not being under a criminal justice sentence.
- The government contends the district court correctly calculated the guidelines range or, if not, any error was harmless given the court’s stated willingness to impose the same sentence.
- The panel reviews for procedural error (guidelines calculation and related facts) de novo and for substantive reasonableness an abuse of discretion; the sentence is affirmed as reasonable and the calculation error harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether four CH points were properly added for the 2009 conviction | Torres-Ibarra argues the district court erred by adding two additional points | Government contends the four points reflect sentencing rules under § 4A1.1(a)/(d) | No reversible error; any error harmless given the court would impose the same sentence under III or IV. |
| Whether the district court erred by applying two CH points under § 4A1.1(d) | Torres-Ibarra claims he was not under a criminal justice sentence at the time of the instant offense | Government maintains the two-point addition was proper under § 4A1.1(d) | Plain error not shown; any error harmless in light of the sentence. |
| Whether the potential calculation errors affected the sentence under § 3553(a) | Torres-Ibarra contends the miscalculation affected the sentencing range and rationale | Government asserts the court explicitly considered alternative ranges and still imposed the same sentence | The district court’s decision to grant a non-guidelines sentence was not substantively unreasonable. |
| Whether the non-guidelines sentence is substantively reasonable | Torres-Ibarra argues the sentence is unreasonably long given guidelines range | Government argues factors under § 3553(a) justify a non-guidelines sentence | Sentence affirmed; district court’s balancing of § 3553(a) factors and extent of variance are reasonable. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (guidelines procedural error review and abuse of discretion standard of review)
- Cisneros-Gutierrez, 517 F.3d 751 (5th Cir. 2008) (guidelines interpretation reviewed de novo; factual findings reviewed for clear error)
- Bonilla, 524 F.3d 647 (5th Cir. 2008) (harmless error when miscalculation of guidelines range; sentence upheld)
- Duhon, 541 F.3d 391 (5th Cir. 2008) (harmless error principles applied to guidelines calculations)
- Rodriguez-Parra, 581 F.3d 227 (5th Cir. 2009) (plain-error standard for forfeited sentencing errors)
- Lopez-Salas, 513 F.3d 174 (5th Cir. 2008) (consideration of cross-circuit treatment of a prior conviction in § 3553(a) analysis)
- Lopez-Velasquez, 526 F.3d 804 (5th Cir. 2008) (substantial variances supported by § 3553(a) considerations)
- Brantley, 537 F.3d 347 (5th Cir. 2008) (extent of variance in non-guidelines sentences reasonable)