United States v. Martin Franco-Galvan
2017 U.S. App. LEXIS 11140
| 5th Cir. | 2017Background
- Marco Franco-Galvan pleaded guilty to illegal reentry after prior deportations and was sentenced using the 2016 U.S. Sentencing Guidelines (USSG) § 2L1.2.
- Before his first removal (Sept. 2005) he was convicted in Texas of aggravated assault and given 10 years deferred adjudication probation and 30 days jail.
- After removal, state authorities revoked his probation based on later conduct (a 2007 DWI) and imposed a 15-year prison sentence; he was later deported again.
- At federal sentencing the district court applied a +10 level enhancement under USSG § 2L1.2(b)(2)(A) (felony with sentence ≥5 years) based on the 15-year revocation sentence and calculated a guideline range of 24–30 months, then varied downward to impose 18 months.
- Franco-Galvan argued the court should have treated the pre-removal disposition (30 days + probation) as the operative sentence and applied a lesser enhancement (4 levels), yielding a 10–16 month range.
- The Fifth Circuit vacated and remanded for resentencing, holding Bustillos-Pena remained controlling and the Guidelines error was not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a pre-removal conviction’s "sentence imposed" for § 2L1.2 enhancement includes a post-removal revocation prison term | Franco-Galvan: "Sentence imposed" should mean the original, pre-removal sentence (probation + 30 days), so apply the lower enhancement | Government: 2016 amendments changed § 2L1.2; deletion of timing language and new structure permit using the revocation prison term | Court: Bustillos-Pena controls; interpret "sentence imposed" with focus on pre-removal sentence; prior panel precedent not abrogated by 2016 amendments |
| Whether the 2016 amendments to § 2L1.2 abrogated Bustillos-Pena | Franco-Galvan: 2016 changes do not meaningfully alter prior interpretation | Government: Deletion of earlier timing language and restructuring shows Commission intended different rule | Court: Changes not sufficiently clear to overrule Bustillos-Pena; Commission’s silence on deletion is not persuasive evidence of reversal |
| Whether any sentencing error was harmless given district court varied below the (erroneous) guideline range | Franco-Galvan: N/A (seeking relief) | Government: Variation below the range shows error harmless; court would have imposed same sentence anyway | Court: Error not harmless; government failed to prove the district court would have imposed same sentence above the correct (lower) guideline range |
| Proper remedy | Franco-Galvan: Remand for resentencing under correct guideline calculation | Government: Affirm sentence | Court: Vacate and remand for resentencing |
Key Cases Cited
- United States v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010) (interpreting § 2L1.2 to look to pre-removal probated sentence, not later revocation prison term)
- United States v. Lopez, 634 F.3d 948 (7th Cir. 2011) (same interpretation as Bustillos-Pena)
- United States v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012) (same interpretation)
- United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000) (same interpretation)
- United States v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004) (reached a different conclusion)
- United States v. Martinez-Romero, 817 F.3d 917 (5th Cir. 2016) (government bears burden to show Guidelines error harmless)
- United States v. Huskey, 137 F.3d 283 (5th Cir. 1998) (evidence required to show district court would have imposed same sentence despite error)