United States v. Barahona-Mejia , 166 F. App'x 120 ( 2006 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT February 6, 2006
_____________________ Charles R. Fulbruge III
Clerk
No. 04-51361
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELVIN OMAR BARAHONA-MEJIA,
Defendant-Appellant,
__________________
On Appeal from the United States District Court
For the Western District of Texas
__________________
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Barahona-Mejia appeals his sentence following his guilty
plea to a charge of illegal reentry after deportation in
violation of 8 U.S.C. § 1326. We affirm in part and remand for
the limited purpose of consideration by the district court of
whether it will impose a different sentence under the now-
advisory sentencing guidelines and resentencing as necessary.
*
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this opinion should not be published and is not precedent except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.
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First, Barahona-Mejia argues that the felony and aggravated
felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersy, 530 U.S. 466
(2000). This argument is foreclosed by the Supreme Court’s
decision in Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998).
Second, Barahona-Mejia argues that the district court
committed Booker error when it sentenced him under the mandatory
Sentencing Guidelines. Barahona-Mejia did not raise a Booker or
Blakley objection at sentencing, and therefore his claim is
reviewed for plain error. United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005), cert. denied, 126 S. Ct. 43 (2005). An
appellate court may not correct an error the defendant failed to
raise in the district court unless there is (1) error, (2)that is
plain, and (3) that affects substantial rights. Id. The
government concedes that the district court committed Booker
error, but argues that Barahona-Mejia cannot demonstrate that the
error affected his substantial rights.
Barahona-Mejia points to two facts in support of his claim
that the district court’s Booker error affected his substantial
rights. First, the district court, after a discussion of
Barahona-Mejia’s situation in the sentencing hearing, stated, “I
wish I knew of some way that I could be of help to you, but I
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don’t know a way. That’s a very sad story that you’ve told me.”
The district court then asked counsel, “[C]an you think of
anything that could be done that would alleviate his problems?”
At the close of the hearing, the district court stated, “Mr.
Barahona, that’s as bad a situation as I’ve heard in a long time.
I wish I had the means to help you.” Second, after making these
statements, the district court imposed a sentence of 30 months,
the minimum sentence within the applicable Guideline range.
Barahona-Mejia argues that the district court’s sympathetic
statements, combined with the minimum sentence under the
Guidelines, demonstrate that the Booker error affected his
substantial rights.
The government argues that the statements made by the
district court, while sympathetic, do not indicate a desire to
sentence Barahona-Mejia outside the applicable Guideline range or
otherwise criticize the Guidelines-mandated result. Instead, the
government argues that Barahona-Mejia has misconstrued the
district court’s concern with his citizenship status as a desire
to impose a lesser sentence, and notes that the district court
did not respond to a suggestion by Barahona-Mejia’s counsel that
the court impose a lesser sentence so that he could return to
Honduras to find work.
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In reviewing a claim of Booker error, we consider
“statements of the sentencing judge that suggest a lower sentence
would be imposed under an advisory system.” See United States v.
Rodriguez-Gutierrez, 428 F.3d 201, 203-04 (5th Cir. 2005). In
doing so, we also consider the “relationship between the actual
sentence imposed and the range of sentences provided by the
Guidelines.” Id. at 204. “[S]entences falling at the absolute
minimum of the Guidelines provide the strongest support for the
argument that the judge will have imposed a lesser sentence.”
Id. Although that fact alone will not establish that the Booker
error affected the defendant’s substantial rights, a minimum
sentence is “highly probative, when taken together with relevant
statements by the sentencing judge indicating disagreement with
the sentence imposed, that the Booker error did affect the
defendant’s substantial rights.” Id.
Rather than speculate about the meaning of the district
court’s sympathetic comments to Barahona-Mejia, and whether he
would have imposed a shorter sentence had he understood that he
was free to consider such a sentence, and in light of the
sentence imposed at the bottom of the applicable Guideline range,
we REMAND for the limited purpose of consideration by the
district court of whether it wishes to impose a different
sentence under the now-advisory Sentencing Guidelines. If the
district court elects to resentence the defendant, it is
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authorized to vacate its original sentence and proceed to
resentence defendant under Rule 32 F.R.C.P. If the district
court decides not to resentence the defendant and enters an order
reflecting this decision, the court’s original sentence will
stand.
SENTENCE AFFIRMED; CASE REMANDED FOR DISPOSITION CONSISTENT
WITH THIS OPINION.
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