United States v. Guillermo Horta-Alvarez ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16757
Non-Argument Calendar
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D.C. Docket No. 1:16-cr-20038-JAL-28
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO HORTA-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 19, 2017)
Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Guillermo Horta-Alvarez appeals his 67-month sentence of imprisonment
after pleading guilty to one count of conspiracy to possess with intent to distribute
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cocaine base. Horta-Alvarez contends that the district court’s sentence was
procedurally unreasonable because the court relied on a fact not in the record—that
he processed cocaine into crack cocaine for distribution. And he asserts that the
error was not harmless because that clearly erroneous fact was one of two reasons
given for denying him the full extent of his requested variance. We agree with
Horta-Alvarez on both points, and we therefore vacate and remand for
resentencing.
I.
Horta-Alvarez pled guilty to one count of conspiracy to possess with intent
to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846and 841(b)(1)(B)(iii). According to Horta-Alvarez’s presentence investigation
report (“PSR”) and factual proffer, he arranged crack cocaine transactions with
codefendants on multiple occasions, including one transaction in which he agreed
to purchase an ounce of crack cocaine. Horta-Alvarez said that the reason he sold
crack cocaine was to pay for his own addiction to crack. He described himself as
“super addicted” to crack.
Horta-Alvarez’s PSR calculated a guideline range of 77 to 96 months of
imprisonment based on a total offense level of 21 and a criminal history category
of VI. Since there were no objections to the PSR’s guideline calculations, the
district court adopted that range for sentencing.
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At his sentencing, Horta-Alvarez asked the court to vary below the guideline
range and sentence him to 60 months of imprisonment, the statutory minimum for
his offense. He argued that a variance was warranted due to his age (71 at the time
of sentencing), his background, and his addiction to crack cocaine. He said that his
extensive criminal history was primarily the result of his addiction. The
government requested a sentence at the low end of the guideline range.
After hearing from both parties, the district court sentenced Horta-Alvarez.
The court discussed the § 3553(a) sentencing factors, including the offense
conduct, his age, his addiction to crack cocaine, and his “extensive criminal
history” beginning at age 40 and continuing to the instant offense at age 70. The
offense conduct, the court stated, involved Horta-Alvarez’s purchases of crack
cocaine in order to resell it in or near a trailer park. Further, the court stated that
“some of this supply of crack cocaine was in the form of cocaine that was then
processed to become crack cocaine and distributed by the Defendant.” Sentencing
Hr’g Tr. at 11.
Addressing and rejecting Horta-Alvarez’s request for a 60-month sentence,
the court explained,
And in considering the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law and provide
just punishment for the offense, to afford adequate deterrence to
criminal conduct—and quite frankly, to protect the public from further
crimes of the Defendant, I do not find that a sentence of 60 months is
sufficient, given the Defendant’s extensive criminal history, his
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participation in the offense conduct in this case, which included the
distribution of at least 28 grams of cocaine base, including receiving
cocaine and processing it for distribution into cocaine base.
Id. at 15 (emphasis added). But the court granted a 10-month variance below the
guideline range, to 67 months of imprisonment, based on Horta-Alvarez’s age, his
background, and his addiction to crack cocaine. After the court pronounced
sentence, Horta-Alvarez lodged an objection “to the finding that [he] processed
crack cocaine.” Id. at 19. The court noted the objection for the record but did not
revisit the issue. Horta-Alvarez now appeals.
II.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. United States v. Thompson, 702 F.3d 604, 606–07 (11th Cir.
2012). Under that standard, “[a] sentence can be procedurally unreasonable if the
district court errs by, inter alia, ‘failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from the Guidelines
range.’” United States v. Nagel, 835 F.3d 1371, 1375 (11th Cir. 2016) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)). “The party challenging the
sentence has the burden of showing the sentence to be procedurally unreasonable.”
United States v. Hill, 783 F.3d 842, 844 (11th Cir. 2015).
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If a district court selects a sentence based on a fact for which no record
evidence exists, that finding is clearly erroneous, and the sentence is procedurally
unreasonable. United States v. Barner, 572 F.3d 1239, 1251 (11th Cir. 2009).
Where the district court procedurally errs, “a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless,
i.e., that the error did not affect the district court’s selection of the sentence
imposed.” See Williams v. United States, 503 U.S. 193, 203 (1992) (addressing the
proper standard of review when a district court misapplies the Guidelines).
Therefore, where the district court relies on both proper and improper factors in
making a sentencing decision, “we may affirm so long as the record reflects that
the improper factors did not affect or influence the district court’s conclusion.”
United States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994). But “[i]f we
cannot say so with certainty, remand is necessary.” Id.Horta-Alvarez argues that the district court imposed a procedurally
unreasonable sentence by relying on a fact with no support in the record—that he
processed cocaine into crack cocaine. The government acknowledges, and we
agree, that no record evidence supports a finding that he processed cocaine into
crack cocaine. Accordingly, that finding, assuming it was made, is clearly
erroneous. See Barner, 572 F.3d at 1251. Nevertheless, the government maintains
that the district court did not actually find that Horta-Alvarez made crack cocaine
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and that, even if it did, the record demonstrates that that finding did not affect the
district court’s choice of sentence. We disagree on both counts.
First, we conclude that the district court made, or at least gave the
impression of making, a factual finding that Horta-Alvarez processed cocaine into
crack cocaine. During sentencing the court made two references to the processing
of cocaine into crack cocaine. While the first reference was somewhat ambiguous,
see Sentencing Hr’g Tr. at 11, (“[S]ome of this supply of crack cocaine was in the
form of cocaine that was then processed to become crack cocaine and distributed
by the Defendant.”), the second reference more directly links the offense conduct
with the processing of cocaine into crack cocaine. Specifically, the court indicated
that Horta-Alvarez’s offense conduct included not only “the distribution of at least
28 grams of cocaine base,” but also “receiving and processing it for distribution
into cocaine base.” Id.If, as the government contends, the district court did not believe that Horta-
Alvarez’s offense involved processing cocaine into crack cocaine, it’s unclear why
the court would reference processing in the first place. After all, every offense
involving crack cocaine involves a substance that has been processed at some point
along the line. The act of processing cocaine into crack cocaine would seem to be
notable only insofar as it bears on the defendant’s relevant conduct. And any
ambiguity on this point could easily have been resolved when Horta-Alvarez
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objected at the conclusion of the sentencing hearing to the court’s “finding that
[he] processed crack cocaine.” Id. at 19. If the court did not make that finding, it
would have been simple enough to say so. But the court did not correct Horta-
Alvarez, so we presume that his objection accurately reflected the court’s finding.
Accordingly, the record indicates that the district court relied on a clearly
erroneous fact in sentencing Horta-Alvarez. See Barner, 572 F.3d at 1251.
Second, we cannot say that the district court’s reliance on a clearly
erroneous fact was harmless under the circumstances. See Kendrick, 22 F.3d at
1069. The government argues that a “full and fair” review of the sentencing
proceeding shows that the court based its sentencing decision on the fact that
Horta-Alvarez was an unreformed recidivist, not on any factual findings about
processing cocaine into crack cocaine. But the record shows that the court offered
two reasons for denying Horta-Alvarez the full measure of his requested leniency.
The first was the fact that he was an unreformed recidivist. The second was his
offense conduct, including the erroneous fact about “receiving and processing
[cocaine] for distribution into cocaine base.” Sentencing Hr’g Tr. at 11. While
Horta-Alvarez’s recidivism clearly played an important role in the court’s decision,
we cannot simply ignore the second reason given by the court for denying his
requested variance.
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Nor can we say with certainty that the clearly erroneous fact about
processing was not significant enough to affect the court’s decision. Receiving and
processing cocaine into cocaine base for distribution suggests a more serious
offense than simply purchasing and reselling already-processed crack cocaine
primarily to fund an addiction. And despite an opportunity later in the hearing, the
court did not clarify that the finding as to processing did not influence its decision
not to grant the variance request in full. Cf. Fed. R. Crim. P. 32(i) (stating that the
district court “must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or because the court will not
consider the matter in sentencing”).
For these reasons, we are unable to say with certainty that the district court’s
reliance on a clearly erroneous fact was harmless. And because “we cannot say so
with certainty, remand is necessary.” See Kendrick, 22 F.3d at 1069.
Accordingly, we VACATE the sentence and REMAND for resentencing.
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