United States v. Erasto Gomez-Jimenez , 750 F.3d 370 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5030
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERASTO GOMEZ-JIMENEZ,
Defendant - Appellant.
No. 13-4059
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON JUAREZ-GOMEZ,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11−cr−00375−D-2; 5:11−cr−00375−D-1)
Argued: January 28, 2014 Decided: April 24, 2014
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Niemeyer joined. Judge Gregory wrote a separate
opinion concurring in part and dissenting in part.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North
Carolina, for Appellant Erasto Gomez-Jimenez; Joseph Bart
Gilbert, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant Aaron Juarez-Gomez. Joshua L. Rogers,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas P. McNamara, Federal Public
Defender, Stephen C. Gordon, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant Aaron Juarez-Gomez. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-
McKinney, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
2
AGEE, Circuit Judge:
Before the court are two related cases that we have
consolidated. In one case, Erasto Gomez-Jimenez (“Erasto”)
appeals the district court’s judgment sentencing him to 180
months’ imprisonment by challenging the application of several
sentencing enhancements. In the other case, Aaron Juarez-Gomez
(“Juarez-Gomez”) seeks review of two of the six counts of which
he was convicted and also argues that the district court erred
in the application of several sentencing enhancements in
determining his sentence of 390 months’ imprisonment.
For the reasons set forth below, we affirm the judgment of
the district court in each case.
I
Sergeant Todd Marshburn, an officer with the Raleigh, North
Carolina Police Department, received a tip from an informant
regarding a man selling cocaine in the Raleigh area. Upon Sgt.
Marshburn’s request, the informant introduced another
individual, the confidential informant (“CI”), to the suspected
drug dealer. The CI arranged to meet the suspect at a Burger
King restaurant to purchase 14 grams of cocaine.
At the time of the arranged meeting, Juarez-Gomez arrived
at the Burger King driving a yellow, four-door Chevrolet S-10
truck with a personalized, North Carolina license plate that
3
read “GOMEZ.” 1 The CI purchased 13.7 grams of cocaine from
Juarez-Gomez for $500 and took Juarez-Gomez’s phone number to
arrange future meetings directly.
The next day, the CI contacted Juarez-Gomez and asked to
purchase another 14 grams of cocaine. Juarez-Gomez agreed to
make another sale in the parking lot of a grocery store. Juarez-
Gomez arrived at the parking lot in the same yellow truck and
exchanged 14.1 grams of cocaine for $500 with the CI. During
this meeting, the CI asked Juarez-Gomez if he was able to sell a
solid piece of cocaine rather than powder cocaine. Juarez-Gomez
indicated that he had only powder cocaine but provided the CI
with a small sample of crack cocaine. Following the drug
transaction, Raleigh Police Detective Jeffrey Marbrey and other
officers followed Juarez-Gomez, who eventually led them to a
mobile home, where the officers observed the parked yellow truck
adjacent to the trailer.
The following day, the CI arranged to purchase 28 grams of
cocaine from Juarez-Gomez. The CI met Juarez-Gomez at a gas
station, where Juarez-Gomez arrived in the same yellow truck.
Juarez-Gomez exchanged 27.9 grams of cocaine for $900 with the
CI, who asked Juarez-Gomez to sell him greater quantities of
1
Officers later checked the motor vehicle registration of
the truck and found that it was not registered to Juarez-Gomez,
but the truck matched the description that the informant
previously gave police of the suspect's vehicle.
4
cocaine, stating that he had “lots of money” and did not want to
have to meet every day to purchase smaller amounts. Juarez-Gomez
told the CI that he would introduce him to his boss for that
purpose.
Following the drug transaction, Detective Marbrey again
followed Juarez-Gomez to the trailer and parked in a position
that allowed observation of the road to the trailer. Detective
Marbrey then made contact with the landlord of the trailer, and
asked the landlord to call him when the yellow truck left the
trailer.
The next day, the CI again arranged to meet with Juarez-
Gomez to purchase two ounces of cocaine for $2,000. About one
hour before the meeting, the landlord called Detective Marbrey
and informed him that the yellow truck had left the trailer.
Juarez-Gomez arrived at the location of the drug sale in the
same yellow truck, entered the CI’s vehicle, and began speaking
with the CI. Upon the CI’s signal, officers took both men into
custody and seized two ounces of cocaine, one gram of crack, and
an additional small amount of powder cocaine from the headliner
of the yellow truck.
Following the arrest, police officers approached the mobile
home and knocked on the door. A.G., a minor later revealed to be
Juarez-Gomez’s son, answered the door and granted officers
permission to enter the trailer. At that point, officers noticed
5
another man in the trailer, Erasto Gomez-Jimenez. At the same
time, Pedro Gomez-Jimenez (“Pedro”) fled the trailer into the
surrounding woods, but was pursued and apprehended by police.
A.G. then consented to a search of the trailer for
narcotics. Officers conducted a cursory search of the trailer
for safety and observed, in plain view, digital scales, clear
plastic bags, and a pistol. Officers then obtained a search
warrant and conducted a full search of the trailer. Among other
things, officers found over 700 grams of crack cocaine, a ledger
of drug sales, pictures of Pedro posing with firearms, a small
amount of marijuana, five kilograms of powder cocaine (some in
brick form), several cell phones, several firearms, 1615 grams
of liquid cocaine, and over $55,000 cash. Officers also found a
rental receipt for the trailer in A.G.’s wallet and an electric
bill for the trailer bearing Erasto’s name.
A cooperating witness (“CW”) provided officers additional
information regarding the drug activities of Juarez-Gomez,
Pedro, and Erasto. The CW stated that he engaged in a number of
drug transactions with Pedro and Erasto together, and that A.G.
attended several of these drug deals. The CW further stated that
he met Pedro and A.G. at a storage facility where Pedro was
extracting cocaine base from liquid cocaine with A.G.’s
assistance.
6
Juarez-Gomez, Pedro, and Erasto were then named in a seven-
count indictment filed in the Eastern District of North
Carolina. Count One charged all three men with conspiracy to
distribute and possess with intent to distribute 280 grams or
more of cocaine base and five kilograms or more of cocaine in
violation of 21 U.S.C. §§ 841(a)(1) & 846. Counts Two through
Five charged Juarez-Gomez with distribution of a quantity of
cocaine on four separate dates in violation of 21 U.S.C.
§ 841(a)(1). Count Six charged all three men with possession
with intent to distribute 280 grams or more of cocaine base and
five kilograms or more of cocaine and aiding and abetting the
same in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Count Seven charged Juarez-Gomez with being an alien in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5) &
924.
Without the benefit of a plea agreement, Pedro and Erasto
pleaded guilty to Counts One and Six. 2 Juarez-Gomez pleaded not
guilty to all counts and proceeded to a trial by jury, where he
2
The district court held a sentencing hearing for Pedro,
sentencing him to 180 months' imprisonment on Counts One and
Six. Pedro appealed his sentence, and we affirmed in a separate
proceeding. See United States v. Gomez-Jimenez, No. 12-5009,
2013 WL 5977153 (4th Cir. Nov. 12, 2013). No aspect of Pedro's
guilty plea or sentence is before us in this appeal. References
to Pedro herein are for the purpose of analyzing the evidence in
regard to the issues raised by Juarez-Gomez and Erasto.
7
was found guilty of Counts One through Six and not guilty of
Count Seven.
The United States Probation Office prepared a presentence
investigation report (“PSR”) for each defendant. In Erasto’s
PSR, the probation officer concluded that he was accountable for
8,463.62 grams of cocaine and 732.15 grams of cocaine base,
resulting in a base offense level of 34. The probation officer
applied a two-level enhancement for possession of a firearm
pursuant to section 2D1.1(b)(1) of the United States Sentencing
Guidelines (the “Guidelines”). Another two-level enhancement was
applied for the use of a minor under Guidelines section 3B1.4,
but three levels were subtracted under section 3E1.1(b) for
acceptance of responsibility, giving Erasto a total offense
level of 35.
The probation officer concluded that Erasto had one
criminal history point, resulting in a criminal history category
of I. Based upon the total offense level of 35 and criminal
history category of I, the probation officer concluded that the
Guidelines recommended range of imprisonment was 168 to 210
months. Erasto objected to the two-level enhancements for
possession of a firearm and for use of a minor.
At his sentencing hearing, Erasto argued that there was no
evidence of A.G.’s participation in the conspiracy beyond his
presence at the trailer, which he argued was insufficient to
8
warrant the enhancement for use of a minor. In response,
government counsel argued that the use of a minor enhancement
applied because A.G. had paid rent on the trailer, accompanied
Erasto to drug deals, and lived in the trailer with Erasto where
the drugs and firearms were seized. The district court concluded
that Erasto took “an affirmative act to involve a minor in the
offense charged,” specifically having A.G. accompany him on drug
deals. (J.A. No. 12-5030 157–58.) In overruling Erasto’s
objection, the district court stated that the facts presented
were enough to allow the court to draw a reasonable inference
that Erasto used A.G. in the commission of his offenses and that
A.G.’s involvement was more than mere presence.
Erasto’s counsel further argued that the only evidence
linking him to the firearms found in the trailer was his
presence at the trailer when he was arrested. The district court
concluded that the enhancement applied because in addition to
his presence in the trailer at the time of his arrest, the
energy bills for the trailer were in his name.
The district court then considered the factors listed in 18
U.S.C. § 3553(a), finding that Erasto actively participated in
the conspiracy, possessed with intent to distribute both cocaine
and cocaine base, and had entered a criminal enterprise to make
money as a drug dealer. Further, the district court concluded
that the large quantity of drugs combined with the presence of
9
firearms indicated that the enterprise was not a small
operation. In announcing a sentence of 180 months’ imprisonment
for Erasto, the district court stated:
I do believe that I have calculated the
advisory guideline[s] range properly. If,
however, it’s determined that I have not, I
announce pursuant to [United States v.
Keene, 470 F.3d 1347 (11th Cir. 2006), and
United States v. Savillon-Matute, 636 F.3d
119 (4th Cir. 2011)], that I would have
imposed this same sentence as an alternative
variant sentence in light of all the 3553
factors.
(J.A. 12-5030 170.)
Juarez-Gomez’s PSR found him accountable for 8,575.88 grams
of cocaine and 733.55 grams of cocaine base, resulting in a base
offense level of 34. The probation officer applied a two-level
enhancement for possession of a dangerous weapon pursuant to
Guidelines section 2D1.1(b)(1). In addition, a two-level
enhancement was applied under section 3B1.1(c) for being an
organizer, leader, manager, or supervisor of criminal activity
and a further two-level enhancement for use of a minor under
section 3B1.4.
The probation officer reviewed Juarez-Gomez’s criminal
history, finding seven felony convictions and three misdemeanor
convictions, resulting in six criminal history points. Two
points were added to Juarez-Gomez’s criminal history score
because he committed the offenses of conviction while on
10
supervised release, thereby yielding a criminal history category
of IV. Based upon a total offense level of 40 and a criminal
history category of IV, the Guidelines range of imprisonment was
between 360 months to life for Counts One and Six and 240 months
for Counts Two through Five.
Juarez-Gomez objected to the PSR, contending that he did
not live at the trailer and should not be held accountable for
the drugs, money, and firearms found there. He also objected to
the leadership and use of a minor enhancements, but provided no
explanation for those objections.
At Juarez-Gomez’s sentencing hearing, the Government
presented testimony that Juarez-Gomez had personally leased the
trailer and that his son, A.G., paid rent on the trailer “from
time to time.” (J.A. No. 13-4059 476.) The government presented
further testimony that officers found a rental receipt for the
trailer in A.G.’s wallet and that A.G. identified one of the
bedrooms in the trailer as belonging to Juarez-Gomez. The
testimony further showed that A.G. assisted Pedro in extracting
cocaine base from liquid cocaine.
After hearing argument from both parties, the district
court found that the evidence established Juarez-Gomez’s
participation in a drug conspiracy based in the trailer. Based
upon this finding, the district court concluded that Juarez-
Gomez was properly held accountable for the contents of the
11
trailer and that the PSR’s drug weight calculation was accurate.
With respect to the leadership enhancement, the district court
found that Juarez-Gomez was, at the least, “the organizer,
leader, manager, or supervisor of his son[, A.G.,] who was
residing in” the trailer that Juarez-Gomez leased. The district
court further found that Juarez-Gomez sent A.G. to make the
rental payments on the trailer. Although there was no evidence
that Juarez-Gomez claimed a larger share of the fruits of the
conspiracy than his co-conspirators, the district court found
that Juarez-Gomez involved A.G. in the conspiracy and was aware
of A.G.’s role in it.
As to the use of a minor enhancement, the district court
found that Juarez-Gomez had enlisted A.G. in the drug conspiracy
by having him pay rent on the trailer and by having him live in
the trailer, which was used as a drug stash house. The district
court also found that A.G.’s attendance and participation in
drug deals with Pedro and Erasto was reasonably foreseeable to
Juarez-Gomez.
The district court then considered the factors listed in 18
U.S.C. § 3553(a) and sentenced Juarez-Gomez to concurrent terms
of imprisonment of 390 months on Counts One and Six and 240
months on Counts Two through Five. The district court stated
that, although it believed it had properly calculated the
Guidelines range, it would have imposed the same sentence as a
12
variant sentence pursuant to Keene, 470 F.3d 1347, Savillon-
Matute, 636 F.3d 119, and United States v. Hargrove, 701 F.3d
156 (4th Cir. 2012).
Erasto and Juarez-Gomez have each timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a) as to each appeal.
II
On appeal, Juarez-Gomez challenges the sufficiency of the
evidence supporting his conviction on Count One, conspiracy to
distribute and possess with intent to distribute 280 grams or
more of cocaine base and five kilograms or more of cocaine and
Count Six, aiding and abetting the same. 3 He also challenges the
procedural reasonableness of his sentence, arguing that the
district court erred in applying the section 3B1.4 use of a
minor enhancement as well as the section 3B1.1(c) leadership
enhancement.
Erasto challenges the procedural reasonableness of his
sentence, arguing that the district court erred in applying the
section 2D1.1(b)(1) possession of a dangerous weapon enhancement
and the section 3B1.4 use of a minor enhancement. Erasto also
3
Juarez-Gomez does not challenge his convictions on Counts
Two through Five. His convictions on those counts are thus final
and not part of this appeal.
13
challenges the substantive reasonableness of his sentence,
arguing that his Guidelines range resulted only from the
quantity of drugs found in the trailer, rather than from his
conduct or criminal history.
A Juarez-Gomez: Sufficiency of the Evidence
When considering a criminal defendant’s challenge to the
sufficiency of the evidence supporting his conviction, we “must
uphold [the jury’s] verdict if there is substantial evidence,
viewed in the light most favorable to the Government, to support
it.” United States v. Cardwell, 433 F.3d 378, 390 (4th Cir.
2005). “Substantial evidence is that evidence which a
‘reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.’” Id. (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)). “In our inquiry, the
Government is given ‘the benefit of all reasonable inferences
from the facts proven to those sought to be established.’”
United States v. Allen, 491 F.3d 178, 185 (4th Cir. 2007)
(quoting United States v. Tresvant, 677 F.2d 1018, 1021 (4th
Cir. 1982)).
To prove conspiracy, the government must demonstrate beyond
a reasonable doubt (1) an agreement between two or more persons
to engage in conduct that violates a federal drug law, (2) the
14
defendant’s knowledge of the conspiracy, and (3) the defendant’s
knowing and voluntary participation in the conspiracy. See
United States v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011).
Such an agreement need not be formal and may instead be a “tacit
or mutual understanding between the defendant and his
accomplice.” Id. at 679 (quotation marks omitted).
“Circumstantial evidence alone is sufficient to support a
conviction for conspiracy.” Id. “The same evidence establishing
a defendant’s participation in a conspiracy may support a
conclusion that a defendant participated in the principal’s
unlawful intent to possess and distribute drugs, thereby proving
guilt of aiding and abetting as well.” United States v. Burgos,
94 F.3d 849, 873 (4th Cir. 1996).
On appeal, Juarez-Gomez argues that the only evidence
linking him to the trailer’s drug activity was testimony that
police followed him there after he completed two drug
transactions. Further, Juarez-Gomez argues that the government
did not prove at trial that A.G. was his son, that Juarez-Gomez
lived in the trailer, or that Juarez-Gomez was observed to be
physically present inside the trailer. 4 In sum, Juarez-Gomez
4
The government did not present evidence at trial that
Juarez-''Gomez had personally leased the trailer. This evidence
was only tendered at the sentencing hearing and thus is not
considered in the sufficiency of the evidence analysis on Counts
One and Six.
15
argues that evidence that he stopped at the trailer for an
undetermined period of time following two drug transactions did
not constitute substantial evidence to support the jury’s
verdict against him on Count One, conspiracy and Count Six,
aiding and abetting.
Notwithstanding his argument, Juarez-Gomez concedes that
the government “presented strong evidence of his guilt on the
four counts of the indictment that alleged he sold or attempted
to sell cocaine.” (Opening Br. 30.) Juarez-Gomez simply contends
that despite this strong, and uncontested, evidence of guilt
with respect to Counts Two through Five, the government has not
presented substantial evidence linking him to the trailer and,
thus, the conspiracy or aiding and abetting. Yet Juarez-Gomez
fails to recognize that the government also presented conclusive
evidence that the trailer in question was a drug stash house
filled with large quantities of cash, cocaine, and firearms, and
used for the storage, processing, and packaging for sale of
cocaine. The government’s trial evidence established that
Juarez-Gomez drove to the trailer as a final destination
following two cocaine sales, drove from the trailer to a third
cocaine sale, and stayed at the trailer overnight. 5 The
5
The record reflects that the government presented evidence
at trial sufficient to permit the jury to draw a reasonable
inference that Juarez-Gomez stayed at the trailer overnight. The
(Continued)
16
government also presented sufficient evidence to allow the jury
to infer that Juarez-Gomez’s son, A.G., lived in the trailer. 6
This evidence permitted the jury to draw one of two conclusions:
either Juarez-Gomez did not enter the trailer or conduct any
significant business there, or Juarez-Gomez was connected to the
contents of the trailer as well as the individuals residing
therein.
Where physical facts and evidence are capable of more than
one interpretation and reasonable inferences therefrom can be
drawn by a jury, its verdict should not be disturbed. See
Glasscock v. United States, 323 F.2d 589, 591 (4th Cir. 1963).
It is the jury’s duty to weigh contradictory evidence and
government provided testimony indicating that Juarez-Gomez drove
to and stopped at the trailer for an extended period of time on
two separate days after drug sales. On the second day that
Juarez-Gomez drove to the trailer, Detective Marbrey asked the
landlord of the trailer to notify him when the yellow truck left
the trailer. The landlord called Marbrey the next morning when
the truck had departed the trailer, permitting the jury to draw
the reasonable inference that Juarez-Gomez stayed at the trailer
overnight.
6
The government presented both argument and evidence at
trial sufficient to permit the jury to conclude that A.G. was
Juarez-Gomez's son. The government presented evidence that A.G.
shared his father's name and that officers informed A.G. that
his father, Juarez-Gomez, had been arrested at the time of the
search. At trial, Juarez-Gomez objected to a line of questioning
revealing that A.G. shared his father's name on grounds of
hearsay. The district court overruled that objection, and
Juarez-Gomez does not challenge the district court's evidentiary
rulings on appeal. Moreover, A.G. was repeatedly referred to as
Juarez-Gomez's son, or as "Junior," at trial with no objection
from Juarez-Gomez. (See J.A. 208–10, 211, 279.)
17
inferences, pass on the credibility of witnesses, and draw the
ultimate factual conclusions. When there is substantial evidence
to support the jury’s verdict, as there is in this case, the
verdict should not be set aside, even if we were inclined to
draw contrary inferences. Id. at 591.
Here, the government’s evidence provided the jury with
enough circumstantial evidence—Juarez-Gomez’s drug sales, his
frequent and extended presence at the trailer, his minor son’s
living situation at the trailer, and the drug-stash contents of
the trailer—to support the jury’s factual determination that
Juarez-Gomez was involved in a conspiracy with, and aided and
abetted, the person or persons residing in the trailer. In other
words, the jury had sufficient evidence to conclude that Juarez-
Gomez’s involvement in several cocaine sales supported a
reasonable inference that his repeated visits to a drug stash
house were less than coincidental. Because we are required on
appeal to construe all facts and reasonable inferences in favor
of the government, we conclude that the jury’s verdict must be
upheld.
B Juarez-Gomez: Use of a Minor Enhancement
“[W]e review the district court’s sentencing procedure for
abuse of discretion, and must reverse if we find error, unless
we can conclude that the error was harmless.” United States v.
18
Lynn, 592 F.3d 572, 581 (4th Cir. 2010). In determining whether
the district court properly calculated the Guidelines range, we
“review the district court’s legal conclusions de novo and its
factual findings for clear error.” United States v. Layton, 564
F.3d 330, 334 (4th Cir. 2009).
Under section 3B1.4 of the Guidelines, a defendant’s
offense level will be increased by two levels when the defendant
“used or attempted to use a person less than eighteen years of
age to commit the offense or assist in avoiding detection of, or
apprehension for, the offense.” U.S.S.G. § 3B1.4. “Used or
attempted to use” includes any affirmative act “directing,
commanding, encouraging, intimidating, counseling, training,
procuring, recruiting, or soliciting” a minor to engage in the
charged offense. Id. n.1; see United States v. Taber, 497 F.3d
1177, 1181 (11th Cir. 2007). 7
7
We note the existence of a circuit split on the issue of
whether a defendant must take affirmative steps to involve the
minor in the offense or whether that defendant can be held
responsible for a co-conspirator's use of a minor when that use
is reasonably foreseeable. See United States v. Acosta, 474 F.3d
999, 1002 (7th Cir. 2007) (describing the circuit split).
Because we conclude that Juarez-Gomez took affirmative steps to
involve A.G. in the drug conspiracy at issue in this case, we
need not enter the debate as to whether the section 3B1.4
enhancement could also be applicable only upon evidence that the
use of the minor was reasonably foreseeable to the defendant. We
also take no position on whether the court's existing precedent
in United States v. Moore, applying Guidelines section 3B1.3,
also determines co-conspirator accountability under section
3B1.4. See 29 F.3d 175, 179 (4th Cir. 1994) (holding that co-
(Continued)
19
To apply the enhancement, courts generally require evidence
of circumstances “beyond the minor’s mere presence.” United
States v. Molina, 469 F.3d 408, 414 (5th Cir. 2006). Still, an
“affirmative act” may include the defendant “driving himself and
the minor to [a] robbery location,” Taber, 497 F.3d at 1181; or
“asking the minor to accompany him or her to a crime,” United
States v. Voegtlin, 437 F.3d 741, 747 (8th Cir. 2006). In fact,
when “a defendant’s crime is previously planned—when, for
example, she leaves the house knowing she is on her way to
smuggle drugs . . . the act of bringing the child along instead
of leaving the child behind is an affirmative act that involves
the minor in the offense” and constitutes more than mere
presence. United States v. Mata, 624 F.3d 170, 176 (5th Cir.
2010).
Juarez-Gomez argues that the district court erred in
applying the section 3B1.4 enhancement to him because the
evidence showed only that A.G. made one rental payment. Juarez-
Gomez also posits that the government demonstrated only that
A.G. accompanied Pedro and Erasto on drug transactions and
provided no evidence that Juarez-Gomez directly involved A.G. in
his drug sales.
conspirators cannot be held responsible for another member of
the conspiracy's abuse of a position of trust under section
3B1.3 of the Guidelines).
20
This argument, however, ignores the evidence in the full
record. “[A] sentencing court may give weight to any relevant
information before it, including uncorroborated hearsay,
provided that the information has sufficient indicia of
reliability to support its accuracy.” United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). Thus, the district
court could consider not only the rental receipt found among
A.G.’s belongings, but also the testimony that A.G. paid rent on
the trailer “from time to time,” the testimony that Juarez-Gomez
held the lease on the trailer, and the fact that A.G. was
Juarez-Gomez’s son. (J.A. No. 13-4059 476.)
Given the evidence before the district court that the
trailer was a drug stash house that formed the hub of a cocaine-
dealing conspiracy, that Juarez-Gomez leased the trailer, that
A.G. lived in the trailer, that A.G. attended drug deals with
Pedro and Erasto, that A.G. assisted Pedro in the extraction of
cocaine base from liquid cocaine, that A.G. was Juarez-Gomez’s
son, and that A.G. repeatedly paid rent on the trailer, the
district court had ample evidence to conclude that Juarez-Gomez
took the affirmative act of directing his minor son, A.G., to
pay rent on the trailer that he had leased for use as a drug
stash house. Further, given the evidence that the trailer was
filled with large quantities of drugs, money, and firearms,
Juarez-Gomez’s act of bringing A.G. into the trailer to live
21
instead of leaving A.G. in another location “is an affirmative
act that involves the minor in the offense” and constitutes more
than the minor’s mere presence. Mata, 624 F.3d at 176.
We therefore affirm the district court’s application of the
section 3B1.4 use of a minor enhancement as to Juarez-Gomez.
C Erasto: Possession of a Dangerous Weapon
Again, “we review the district court’s sentencing procedure
for abuse of discretion, and must reverse if we find error,
unless we can conclude that the error was harmless.” Lynn, 592
F.3d at 581. We “review the district court’s legal conclusions
de novo and its factual findings for clear error.” Layton, 564
F.3d at 334.
Erasto challenges the district court’s application of the
section 2D1.1(b)(1) possession of a dangerous weapon
enhancement, arguing that there is no direct evidence that he
physically possessed a firearm during any drug transaction.
Erasto further argues that the guns found in the trailer all
belonged to Juarez-Gomez because they were found in Juarez-
Gomez’s bedroom.
At Erasto’s sentencing, the government produced evidence
that authorities found three firearms during their search of the
trailer. The district court attributed those firearms to Erasto,
concluding that it was reasonably foreseeable to him that
22
firearms would be used in the conspiracy. On appeal, Erasto
acknowledges that this court has held that weapons carried by a
member of a conspiracy are attributable to a co-conspirator when
“‘under the circumstances of the case, it was fair to say that
it was reasonably foreseeable to [the defendant] that his co-
participant was in possession of a firearm.’” United States v.
Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (quoting United
States v. White, 875 F.2d 427, 433 (4th Cir. 1989)). Erasto
further acknowledges that this court holds that “[a]bsent
evidence of exceptional circumstances, . . . it [is] fairly
inferable that a codefendant’s possession of a dangerous weapon
is foreseeable to a defendant with reason to believe that their
collaborative criminal venture includes an exchange of
controlled substances for a large amount of cash.” Id. (quoting
United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)).
The facts of this case afforded the district court, under
our precedents and the Guidelines, ample evidence on which to
find that the defendant’s conduct merited the enhancement. As
the district court noted, the commentary to the Guidelines
states that “[t]he enhancement [for possession of a dangerous
weapon] should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the
offense.” U.S. Sentencing Guidelines Manual § 2D1.1 cmt.
n.11(A); (J.A. 159). Undisputed portions of the PSR give every
23
reason to believe that the weapons in question were connected to
the conspiracy and substantive counts on which Erasto was
convicted. The PSR found that Erasto was responsible for more
than 8,000 grams of cocaine and 700 grams of cocaine base
recovered in the form of narcotics and currency from the
residence. (See J.A. 212.) Three firearms—one stolen assault
rifle and two handguns—were discovered in the residence as well,
including one that was in plain view. (See J.A. 201, 203, 211.)
Various tools for measuring, storing, and dissolving cocaine
were also present. (See J.A. 211.) The district court found that
Erasto was tied to the residence through both his presence there
when the police arrived as well as the existence of an energy
bill for the residence in his name. (See J.A. 158.)
Erasto also appears to have been close with his co-
conspirators: one was his brother, and Erasto brought the son of
the third co-conspirator along with him to several drug deals.
(See J.A. 211-12, 213.) The CW told the government that he had
engaged in an unspecified number of drug deals with Erasto and
his brother in the time leading up the arrest. (See J.A. 211-
12.)
Together these facts, not objected to by Erasto, give no
reason to overturn the district court’s factual finding that the
weapons were connected to the drug trafficking conspiracy and
that this was reasonably foreseeable on the part of Erasto.
24
There is nothing in the record to suggest that the weapons were
unconnected to the offense, and the district judge did not err
when he found that the defendant was connected with the
residence through his presence at the time of the search and the
energy bill in his name. Defense counsel had the opportunity at
sentencing to challenge Erasto’s connection to the firearms
beyond his objections to the PSR but stated “I don’t need to be
heard further on the gun.” (J.A. 154.) We thus decline to
disturb the court’s finding that the facts of this case
supported a two-level dangerous weapons enhancement under
Guidelines section 2D1.1(b)(1).
D Assumed Error Harmlessness Review
Juarez-Gomez challenges the district court’s application of
the section 3B1.1(c) leadership enhancement, arguing on appeal
that he performed only the functions of a street-level drug
dealer, the lowest rung on a drug-conspiracy ladder. Erasto
challenges the district court’s application of the section 3B1.4
use of a minor enhancement, arguing on appeal that A.G.’s
presence at a drug deal conducted by he and Pedro was not
legally sufficient to support that enhancement.
Consistent with our circuit precedent in Savillon-Matute
and Hargrove, rather than review the merits of each of these
challenges, we may proceed directly to an “assumed error
25
harmlessness inquiry.” Hargrove, 701 F.3d at 162. In Savillon-
Matute, we held that harmless error review applies to a district
court’s procedural sentencing errors made during its Guidelines
calculation. 636 F.3d at 123–24 (holding that “‘procedural
errors at sentencing . . . are routinely subject to harmlessness
review’” (quoting Puckett v. United States, 556 U.S. 129, 141
(2009))). A Guidelines error is considered harmless if we
determine that (1) “the district court would have reached the
same result even if it had decided the guidelines issue the
other way,” and (2) “the sentence would be reasonable even if
the guidelines issue had been decided in the defendant’s favor.”
Savillon-Matute, 636 F.3d at 123.
In this case, the district court made it abundantly clear
that it would have imposed the same sentence against both
Juarez-Gomez and Erasto regardless of the advice of the
Guidelines. For example, in pronouncing Juarez-Gomez’s sentence,
the district court stated,
I have considered all the 3553(a) factors[,]
and [in] imposing this sentence I do believe
that I have properly calculated the advisory
guideline range. If, however, for some
reason someone were to determine that I did
not, I announce an alternative variant
sentence pursuant to [Keene, 470 F.3d 1347,
Savillon-Matute, 636 F.3d 119, and Hargrove,
701 F.3d 156].
26
(J.A. No. 13-4059 519; see J.A. No. 12-5030 170 (making a nearly
identical statement in pronouncing Erasto’s sentence, quoted in
full supra).)
Thus, even assuming, arguendo, that the district court
erred in its application of the challenged sentencing
enhancements, the first element of the assumed error
harmlessness inquiry is met in each case because the district
court has expressly stated in a separate and particular
explanation that it would have reached the same result,
specifically citing to Savillon-Matute, Hargrove, and its review
of the § 3553(a) factors. We therefore proceed to the second
step of the inquiry, whether the district court’s sentences are
substantively reasonable.
When reviewing the substantive reasonableness of a
sentence, we “examine[] the totality of the circumstances to see
whether the sentencing court abused its discretion in concluding
that the sentence it chose satisfied the standards set forth in
§ 3553(a).” United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010). And while we presume that sentences within the
advisory Guidelines range are substantively reasonable, even
sentences that vary outside the Guidelines range are entitled to
due deference. See United States v. Engle, 592 F.3d 495, 504
(4th Cir. 2010).
27
While Juarez-Gomez provides no argument regarding the
substantive reasonableness of his sentence, Erasto argues that
his sentence is substantively unreasonable because he had
participated in the conspiracy for a short amount of time, the
length of his Guidelines range is based primarily upon the large
quantity of drugs found in the trailer, he had no serious
criminal history, and he faces additional sanctions in
immigration proceedings following his incarceration.
The record reflects that, in each case, the district court
provided a thorough and persuasive § 3553(a) analysis, carefully
considering each of the defendant’s arguments. With respect to
Erasto, the district court recognized its “obligation to impose
a sentence sufficient, but not greater than necessary, to comply
with the purposes set forth in the statute.” (J.A. No. 12-5030
165.) The district court noted that Erasto had conspired to
distribute and possess with intent to distribute large
quantities of both powder cocaine and cocaine base. It
considered the short length of the conspiracy and concluded that
it was not particularly mitigating due to the large quantity of
cocaine found in the trailer. Despite the short duration of the
conspiracy, the district court concluded, “you knew who you were
in business with and you were in business to make money as a
drug dealer. So you then pay a price for the size of the
28
business you go into, and I do think you knew what you were
doing.” (J.A. No. 12-5030 167.)
The district court then considered Erasto’s history and
characteristics, including his family status and upbringing and
the fact that he entered the country illegally. The district
court identified the need for both individual and general
deterrence, expressing concern over “the presence of such a
large amount of drugs, the large amount of currency and the
firearms.” (J.A. No. 12-5030 168.) Based upon all of these
considerations, the district court sentenced Erasto to 180
months’ imprisonment.
Given the district court’s thorough consideration of
Erasto’s arguments and individual circumstances, we do not find
his sentence to be substantively unreasonable. 8
8
We conclude that the district court did not abuse its
discretion by declining to consider Erasto's status as a
deportable alien as a mitigating factor at sentencing. We also
note that Erasto's argument that his status as a deportable
alien is a mitigating factor requiring a lesser sentence has
been squarely rejected in other circuits. See United States v.
Thavaraja, 740 F.3d 253, 262–63 (2d Cir. 2014) (holding that in
determining an appropriate sentence under § 3553(a), "a district
court may[, but not must,] take into account the uncertainties
presented by the prospect of removal proceedings"); United
States v. Morales-Uribe, 470 F.3d 1282, 1287 (8th Cir. 2006)
(vacating a sentence as unreasonable and remanding for
resentencing when a district court judge considered the
defendant's impending deportation as a mitigating factor and
that defendant had repeatedly entered the country illegally);
see also United States v. Flores-Olague, 717 F.3d 526, 535 (7th
Cir. 2013) (affirming the sentencing court's consideration of
(Continued)
29
With respect to Juarez-Gomez, the district court again
considered all of the arguments made at sentencing and evaluated
his individual history and characteristics. Among other things,
the district court considered that Juarez-Gomez “gr[e]w up in
poverty in Mexico” and that he has “repeatedly come to the
United States illegally.” (J.A. No. 13-4059 514.) The district
court then recounted a “variety of crimes” Juarez-Gomez
committed while in the United States, including illegal reentry
following deportation, which the district court concluded “shows
no respect for the law.” (J.A. No. 13-4059 514.) The district
court considered Juarez-Gomez’s involvement of his minor son,
defendant's status as a deportable alien as an aggravating
factor under § 3553(a)); United States v. Petrus, 588 F.3d 347,
356 (7th Cir. 2009) (holding that, dependent upon the
circumstances of the case, a defendant's deportability could be
viewed as either a mitigating or an aggravating factor). And
several more circuits, including this one, have rejected such an
argument in unpublished decisions. See United States v.
Gutierrez, 506 F. App'x 714, 722 (10th Cir. 2012) (unpublished)
(holding that "deportable alien status is not a ground for
departing downward"); United States v. Salguero-Ortiz, 483 F.
App'x 858, 864 (4th Cir. 2012) (unpublished) (affirming a
defendant's sentence when the district court did not sua sponte
consider his status as a deportable alien at sentencing); United
States v. Kiss-Velasquez, 449 F. App'x 634, 637 (9th Cir. 2011)
(unpublished) (holding that a district court "did not err in
concluding that [the defendant] was not entitled to a downward
departure due to his status as an alien subject to removal");
United States v. Arroyo Mojica, 131 F. App'x 80, 82 (9th Cir.
2005) (unpublished) (vacating a defendant's sentence and
remanding for resentencing when the district court considered
the defendant's status as a deportable alien as a mitigating
factor justifying a downward departure).
30
A.G., in the drug conspiracy to be an aggravating factor
warranting a higher sentence and distinguished him from Pedro
and Erasto based upon his aggravated criminal history. Further
citing the need for both individual and general deterrence, the
district court sentenced Juarez-Gomez to concurrent sentences of
390 months’ imprisonment on Counts One and Six and 240 months’
imprisonment on Counts Two through Five.
Again, based upon the district court’s thorough
consideration of the totality of Juarez-Gomez’s circumstances as
well as our deferential standard of review and Juarez-Gomez’s
failure to provide argument regarding substantive reasonableness
on appeal, we find no basis upon which to reverse his sentence.
Erasto makes one additional argument that our precedent in
Savillon-Matute and Hargrove should apply only in cases where a
district court imposes a sentence above the Guidelines range
determined at sentencing. While both Savillon-Matute 9 and
Hargrove 10 did involve consideration of sentences above the
9
In Savillon-Matute, the district court determined that the
defendant’s advisory Guidelines range was 12 to 18 months’
imprisonment. Due to the seriousness of the defendant’s criminal
history, however, the district court ultimately sentenced the
defendant to 36 months’ imprisonment, announcing a variant
sentence pursuant to § 3553(a).
10
In Hargrove, the district court determined that the
defendant’s advisory Guidelines range was 41-51 months’
imprisonment. Based upon its consideration of the factors in
§ 3553(a), the district court ultimately sentenced the defendant
to 60 months’ imprisonment.
31
district court’s determined Guidelines range, harmless error
review can apply to all claims of procedural error at
sentencing. As clearly stated by the Supreme Court in Puckett,
and quoted by this court in Savillon-Matute, “procedural errors
at sentencing . . . are routinely subject to harmlessness
review.” Puckett, 556 U.S. at 141; Savillon-Matute, 636 F.3d at
123; see United States v. Zabielski, 711 F.3d 381, 387 (3d Cir.
2013) (applying harmlessness review to a below-Guidelines
sentence); Keene, 470 F.3d at 1350 (applying harmlessness review
to a within-Guidelines sentence). Here, the district court
explicitly made a separate and particular statement of its
consideration of the § 3553(a) factors in “announcing an
alternate variant sentence.”
Moreover, in Keene, the Eleventh Circuit case establishing
the standards for “assumed error harmlessness review” that we
adopted in Savillon-Matute, the court reviewed and affirmed a
sentence that was within the Guidelines range determined by the
district court at sentencing, but would have been above the
Guidelines range advocated by the defendant on appeal. At
sentencing, the district court concluded that the defendant’s
advisory Guidelines range was 100 to 125 months’ imprisonment,
based in part on its application of a sentencing enhancement for
making death threats under Guidelines section 2B3.1(b)(2)(F).
The defendant argued that the district court had wrongly applied
32
the death threat enhancement and asserted that his Guidelines
range should have been 84 to 105 months’ imprisonment. The
district court ultimately rejected the defendant’s arguments and
sentenced him to 120 months’ imprisonment. The district court
stated for the record that it would have imposed the same
sentence pursuant to § 3553(a) even if it had decided the
Guidelines issue in favor of the defendant.
On appeal, the Eleventh Circuit assumed that the district
court had incorrectly determined the advisory Guidelines range,
and reviewed that assumed error for harmlessness. The court thus
treated the sentence imposed as an above-Guidelines sentence and
considered whether that sentence was reasonable. The Eleventh
Circuit concluded that the sentence was supported by the
district court’s analysis of the § 3553(a) factors regardless of
the advice of the Guidelines. The court reasoned that “it would
make no sense to set aside [a] reasonable sentence and send the
case back to the district court since it has already told us
that it would impose exactly the same sentence, a sentence we
would be compelled to affirm.” 470 F.3d at 1350.
Our decision in this case is in complete parity with Keene.
As in Keene, the district court sentenced the defendants to
terms of imprisonment that were within the Guidelines range
established at sentencing. And also, like Keene, if the
Guidelines issues asserted by the defendants on appeal had been
33
decided in their favor, their sentences would be above-
Guidelines sentences. Because the district court has explicitly
stated that it would have imposed the same sentences regardless
of the advice of the Guidelines, however, we can affirm as long
as those sentences are reasonable. See Hargrove, 701 F.3d at
164–65; Savillon-Matute, 636 F.3d at 124; Keene, 470 F.3d at1348–50. As described above, the district court supported its
sentences with a separate and particular analysis under
§ 3553(a), and we conclude that the district court’s ultimate
sentences were reasonable under that analysis. We therefore
affirm the district court’s sentencing decisions and conclude
that any assumed errors in the district court’s application of
the section 3B1.1(c) leadership enhancement to Juarez-Gomez or
the section 3B1.4 use of a minor enhancement to Erasto were
harmless in this case.
III
For the foregoing reasons, we affirm the district court’s
judgments.
AFFIRMED
34
GREGORY, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority opinion as to the sufficiency of
evidence for Juarez-Gomez’s conviction and the enhancement for
firearm possession. 1 I dissent from the disposition of the
remaining sentencing enhancement challenges: use of a minor,
U.S.S.G. § 3B1.4, and the majority’s harmless error analysis.
I.
I would reverse the district court’s enhancement of Juarez-
Gomez’s sentence for the use of a minor. The Sentencing
Guidelines impose a two-level enhancement where a defendant
“used or attempted to use” a minor in committing the offense of
conviction or in avoiding detection thereof. U.S.S.G. § 3B1.4.
Congress defined “use” in a manner that encompasses a host of
actions ranging from direction to training to solicitation.
U.S.S.G. § 3B1.4 cmt. n. 1. Based on this broad definition, the
1
I also concur in the conclusion that the district court
did not abuse its discretion in refusing to depart downward on
the basis of Erasto’s status as a deportable alien. This Court
has long recognized that we lack jurisdiction to review a
refusal to depart downward so long as the district court
recognized its ability to do so. See, e.g., United States v.
Brewer, 520 F.3d 367, 371 (4th Cir. 2008). The district court
recognized this discretion and declined to exercise it. For
this reason alone, I find no abuse of discretion, see United
States v. Olivares, 473 F.3d 1224, 1231 (D.C. Cir. 2006),
although I agree that a defendant’s status as a deportable alien
does not mandate downward departure.
majority concludes that the enhancement is appropriate based on
the affirmative acts of (1) directing A.G. to pay rent and (2)
“bringing A.G. into the trailer to live instead of leaving A.G.
in another location.” Maj. Op. at 21-22. Whether a defendant
“uses” a minor under the Guidelines is a legal conclusion
reviewed de novo. United States v. Feaster, 43 F. App’x 628,
632 (4th Cir. 2002) (citing United States v. McClain, 252 F.3d
1279, 1284 (11th Cir. 2001)); United States v. Powell, 732 F.3d
361, 380 (5th Cir. 2013).
As elastic as the Guidelines definition may be, I find that
the majority’s conclusion stretches “use” beyond its limits.
Absent other evidence, a minor’s mere presence does not warrant
enhancement under § 3B1.4. See, e.g., United States v. Molina,
469 F.3d 408, 414 (5th Cir. 2006). The majority concludes that
there was more than mere presence, such that the use of a minor
enhancement is appropriate as to Juarez-Gomez. Maj. Op. at 20.
I find that to the extent that there is something more than
presence, those acts do not fall within the Guidelines
definition. United States v. Mata, which the majority opinion
cites, provides a clear line of demarcation between that case
and the facts now before us. 2 In Mata, the court explained that
2
Two other cases referenced in the majority opinion are
also distinguishable. In United States v. Taber, the fact that
the defendant drove the minor to the robbery location was viewed
(Continued)
36
presence could sufficiently constitute an affirmative act where
the minor’s presence served as a decoy or was otherwise
instrumental in evading detection of criminal activity. 624
F.3d 170, 176 (5th Cir. 2010). Discovering such connection
“requires a purpose driven inquiry.” United States v. Powell,
732 F.3d 361, 380 (5th Cir. 2013). Juarez-Gomez’s actions cited
by the majority fall short of being acts intended to “commit the
offense or assist in avoiding detection of, or apprehension for,
the offense.” U.S.S.G. § 3B1.4.
A.
On this record, paying rent for the trailer was neither
criminal activity nor a means of avoiding detection. Without
any evidence that submitting the monthly rent for the place
where he and his father lived is a criminal act, I do not see
in connection with the fact that the minor broke into a building
and stole firearms, a patently affirmative criminal act, and
that the defendant acted as a lookout while the minor stole
weapons. 497 F.3d 1177, 1181 (11th Cir. 2007). The record does
not demonstrate the same confluence of criminal activity
involving Juarez-Gomez and A.G.
United States v. Voegtlin noted that enhancement may be
proper where a minor is asked to accompany a defendant who
commits a crime. 437 F.3d 741, 747 (8th Cir. 2006). However,
the case upon which Voegtlin relied for this rule involved a
minor asked to accompany the defendant to a crime because the
defendant would not have had the courage to commit the crime
without the minor present. See United States v. Paine, 407 F.3d
958, 965 (8th Cir. 2005). Again, nothing in this record crafts
an analogous situation whereby Juarez-Gomez needed A.G. in order
to sell drugs.
37
how A.G.’s act of paying the rent amounts to committing the
offense of conspiracy to distribute. Were that the case, then
all parents who ask their children to drop off a rent payment
for a residence that is used to engage in criminal activity
would be subject to a two-level enhancement. Furthermore,
nothing in the record so much as hints at how A.G. paying the
rent, rather than Juarez-Gomez, somehow kept the landlord or
anyone else from discovering criminal activity in the trailer. 3
Without a showing that paying rent for A.G.’s residence was
criminal or linked to evasion from authorities, merely paying
rent cannot amount to an affirmative act involving the minor in
the offense of conviction.
In much the same way, I also disagree that the enhancement
applies on the ground that Juarez-Gomez brought A.G. to live in
the trailer rather than leave A.G. elsewhere. The majority’s
reliance on Mata for this conclusion is misplaced. In Mata, the
court explicitly found a connection between the minors’ presence
and a plan for evading detection. See Mata, 624 F.3d at 177(the presence of the minors in the car was intended to “give the
appearance that the group was traveling as a family unit and to
3
The landlord stated that he collected rent from A.G. from
time to time. This does not suggest that A.G. exclusively, as
opposed to intermittently, paid the rent. Thus, there is no
inference that A.G. paying rent was a method for Juarez-Gomez to
avoid being known by the landlord or anyone else.
38
reduce the likelihood of coming under suspicion for being
engaged in criminal conduct”). The court cited evidence
demonstrating that the defendant, who planned to use her
children to avoid detection from law enforcement, “could have
avoided bringing her children with her by leaving them under the
care of her friend who, like Mata, lived in San Antonio.” Mata,
624 F.3d at 177. Here, there is no proof that A.G.’s presence
at the trailer served as an explanation or cover for criminal
activity. See Molina, 469 F.3d at 413-14 (enhancement
inappropriate where no evidence in drug conspiracy conviction
could show that the defendant “believed that his seventeen-year-
old girlfriend’s presence in the vehicle during the drug run
would assist in avoiding detection”). Furthermore, no evidence
demonstrates that Juarez-Gomez could have left his son to live
with someone, whether in the same city or elsewhere.
The Fifth Circuit was careful to limit its decision in
order to ensure that § 3B1.4 was not applied to “every defendant
who brings a minor child along while [engaging in criminal
conduct] is subject to” the § 3B1.4 enhancement. Mata, 624 F.3d
at 176. By contrast, the majority opinion lays the very trap
that the Fifth Circuit refused to set. The facts in this case
do not show that A.G. paying rent or living with Juarez-Gomez
was criminal or calculated to elude authorities. By applying
39
§ 3B1.4 regardless, the majority expands the enhancement beyond
its language.
B.
A.G.’s presence at drug deals with Pedro and Erasto involve
some additional facts, yet not enough for me to agree that the
use of a minor enhancement was appropriate for Juarez-Gomez.
The confidential witness explained that A.G. was present at
multiple drug deals with both Pedro and Erasto, and that another
deal where only Pedro and A.G. were present involved A.G.
assisting Pedro in cooking cocaine base. No facts demonstrate
that Juarez-Gomez instructed A.G. to join Pedro and Erasto, or
that he instructed A.G. to engage in criminal activity, e.g.
cooking cocaine. 4
To the extent that the majority implicitly relies upon
A.G.’s acts in connection with Pedro and Erasto’s activities,
see Maj. Op. at 21, enhancement could only be proper if it was
reasonably foreseeable that Pedro and Erasto would involve A.G.
in criminal activity. The majority declined to take a position
on this issue, having otherwise found sufficient proof of an
affirmative act within the definition of § 3B1.4. See Maj. Op.
4
At oral argument, the government averred that having A.G.
in the trailer where individuals were storing and cooking drugs
equates to training and encouragement. Taken to its logical
conclusion, presence at any criminal activity would be construed
as encouraging a minor to engage in the same activity, rendering
“mere presence” a mere theory.
40
at 19 n. 8. I address this issue only to make two brief points.
First, with respect to those deals involving both Erasto and
Pedro, no evidence shows that A.G.’s presence in any way
assisted the commission of the drug deals or diminished the
likelihood of detecting criminal activity. 5 Cf. Mata, 624 F.3d
at 176-77. Second, the deal where A.G. assisted Pedro in
cooking cocaine base undoubtedly presents a use of minor within
the Guidelines definition. However, I would conclude that
Pedro’s conduct, even if reasonably foreseeable, cannot trigger
the use of a minor enhancement as to Juarez-Gomez. See United
States v. Pojilenko, 416 F.3d 243 (3d Cir. 2005) (co-
conspirator’s reasonably foreseeable use of a minor cannot apply
to other conspiracy members for the purpose of applying
§ 3B1.4). I believe the principles recognized in our United
States v. Moore decision apply equally to § 3B1.4. See 29 F.3d
175 (4th Cir. 1994). Moore looked to the structure and
defendant-specific language of role in the offense enhancements
under chapter three and held that the Guidelines require a
finding that the defendant, not any co-conspirators, engage in
the proscribed behavior. Id.; see also Pojilenko, 416 F.3d at
248-249 (applying Moore’s reasoning to § 3B1.4).
5
Although the majority does not reach the issue, I would
find § 3B1.4 inapplicable to Erasto for this same reason.
41
For these reasons, I would find that neither the conduct of
Juarez-Gomez nor that of his co-conspirators supports a § 3B1.4
enhancement for Juarez-Gomez.
II.
I further disagree that, even assuming the district court
committed error in applying the leadership enhancement to
Juarez-Gomez and the use of a minor enhancement to Erasto, the
errors were harmless.
In order to avoid remanding a sentence that we would
otherwise affirm despite a procedural error, we conduct an
“assumed error harmlessness inquiry” consisting of two steps.
United States v. Hargrove, 701 F.3d 156, 162-63 (4th Cir. 2012);
see also United States v. Savillon-Matute, 636 F.3d 119, 123-24
(4th Cir. 2011). First, this Court must have the “knowledge
that the district court would have reached the same result even
if it had decided the [G]uidelines issue the other way.”
Savillon-Matute, 636 F.3d at 123. Second, this Court must
determine that the imposed sentence would be reasonable even
after resolving the procedural error in the defendant’s favor.
Id. Only where the Court is “certain” of these two factors will
an error be deemed harmless. United States v. Gomez, 690 F.3d
194, 203 (4th Cir. 2012).
42
I am not certain that we have the requisite knowledge that
the district court would have reached the same result absent any
error in calculating the Guidelines range. To be sure, the
district court stated that it would have imposed the same
sentence even if the Guidelines calculations were erroneous.
This explicit statement presents a different circumstance from
Savillon-Matute, Hargrove, and our recent decision in United
States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013), where the
district courts made no such statement. Even so, I do not
believe that a simple statement that the court would have
imposed the same sentence is sufficient, at least where the
imposed sentence exceeds what would have been the Guidelines
range absent the procedural error. 6 The district court’s
explanation fails to distinguish its reasons for a within-
Guidelines sentence from those for an above-Guidelines sentence,
and thus fails to provide the necessary certainty to know it
would have imposed the same sentence. See United States v.
6
If we assume the court erred in applying the use of a
minor enhancement to Erasto, then his 180-month sentence exceeds
what would be a Guidelines range of 135-168 months.
If we likewise assume the court erred in applying both the
use of a minor and the leadership enhancements to Juarez-Gomez,
his 390-month sentence also exceeds what would be a Guidelines
range of 262-327 months. This would result from a four-level
reduction--two levels for each enhancement. If we only assume
error as to the leadership enhancement, since the majority
affirmed the use of a minor enhancement, then the two-level
reduction would result in a range of 320-405 months.
43
Zabielski, 711 F.3d 381, 389 (3d Cir. 2013) (“Though probative
of harmless error, [a statement that the court would have
imposed the same sentence] will not always suffice to show that
an error in calculating the Guidelines range is harmless;
indeed, a district court still must explain its reasons for
imposing the sentence under either Guidelines range.”).
In reviewing above-Guidelines sentences, without the
harmless error analysis, we would require the district court to
“explain his conclusion that an unusually lenient or an
unusually harsh sentence is appropriate.” United States v.
Gall, 552 U.S. 38, 46 (2007). The majority is content with
considering harmless what would otherwise require a separate and
particular explanation for a variance. To allow what is, as a
matter of analytical fiction, an above-Guidelines sentence
without the explanation normally required for such sentences
fails to comport with the need “to allow for meaningful
appellate review and to promote the perception of fair justice.”
Id. at 50. Nothing could be less meaningful than labeling an
error harmless so long as a district court states it would
impose the same sentence in the event it erred, without also
“thorough[ly] expla[ining]” why it would do so. Zabielski, 711
F.3d at 389. The exception has now swallowed the rule.
Our good colleague, who previously authored Savillon-
Matute, recognized that harmlessness is difficult to prove where
44
a district court calculates a guidelines range and sentences a
defendant within that range, for “it is logical to assume that
if a district court is content to sentence within whatever the
guidelines range happens to be, then a lower range would lead to
a sentence within that lower range.” Montes-Flores, 736 F.3d at
372 (Shedd, J., dissenting). It would seem equally logical that
if the ranges for Erasto and Juarez-Gomez were erroneously
calculated, the district court would have imposed a sentence
within the new ranges just as it imposed sentences within the
erroneous ranges. We cannot be certain that it would have
varied upward without some appropriate and stated justification
for doing so.
Within-Guidelines sentences, the scenario Judge Shedd
referenced in Montes-Flores, appear in the majority of
convictions. Undoubtedly, some cases will also involve
reprehensible behavior and criminal history that may warrant
punishment beyond what the Guidelines recommend. I do not doubt
a district court’s power to impose such sentences. I only call
for what would be required if we were to apply Gall and consider
procedural reasonableness: a “justification for an above-
Guidelines sentence.” Montes-Flores, 736 F.3d at 371 (emphasis
added). If the standard for harmlessness truly is “a high bar,”
id., we should not be so forgiving as to find harmlessness
without the explanation that would be otherwise required, see,
45
e.g., United States v. King, 673 F.3d 274, 283 (4th Cir. 2012)
(appellate review must ensure that district courts “adequately
explain . . . any deviation from the Guidelines range”). Only
with the assistance of such an explanation or justification may
we then conduct a meaningful review.
The absence of such justification for the alternative
sentence cannot be more at odds with the perception of fair
justice. The majority perceives the district court as
specifically citing, in a “separate and particular explanation”
for its alternative sentence, Maj. Op. at 26, the § 3553(a)
factors. In reality, that “separate and particular explanation”
was a single sentence, in which the district court simply
referenced our harmless error precedent and its § 3553(a)
analysis, which was devoid of any indication that an upward
variance was necessary to impose an appropriate sentence. A
court must provide more than just the § 3553(a) factors as a
reason for varying upward, as those are required for every
sentencing. Montes-Flores, 736 F.3d at 371. Absent any stated
reason for varying upward where the court was otherwise
satisfied to impose a sentence in the middle of the Guidelines
range, I do not find that the district court’s § 3553(a) review
would justify an upward variance. While district courts need
not employ any particular verbiage to justify an above-
Guidelines sentence, the imposition of an alternative sentence
46
demands “a thorough explanation” that “can help us identify when
an erroneous Guidelines calculation had no effect on the final
sentencing determination.” Zabielski, 711 F.3d at 389. To
accept the perfunctory reasoning offered here for an
alternative, variant sentence would be to value form over the
substance Gall requires.
The evolution of our harmless error jurisprudence has
reached the point where any procedural error may be ignored
simply because the district court has asked us to ignore it. In
other words, so long as the court announces, without any
explanation as to why, that it would impose the same sentence,
the court may err with respect to any number of enhancements or
calculations. More to the point, a defendant may be forced to
suffer the court’s errors without a chance at meaningful review.
Gall is essentially an academic exercise in this circuit now,
never to be put to practical use if district courts follow our
encouragement to announce alternative, variant sentences. 7 If
7
While this Court has reviewed alternative sentences for
more than twenty years, we recently began encouraging the
imposition of alternative sentences in light of uncertainties
eventually resolved by United States v. Booker. See United
States v. Hammoud, 378 F.3d 426 (4th Cir. 2004), vacated 543
U.S. 1097 (2005); see also Montes-Flores, 736 F.3d at 374 & n. 4
(Shedd, J., dissenting). Perhaps this concept of alternative
sentences serves a purpose in extraordinary circumstances of
constitutional importance, such as that time period where we
questioned whether the Guidelines were mandatory or advisory.
See id. at 426; see also United States v. Alvarado Perez, 609
(Continued)
47
the majority wishes to abdicate its responsibility to
meaningfully review sentences for procedural error, the least it
can do is acknowledge that it has placed Gall in mothballs,
available only to review those sentences where a district court
fails to cover its mistakes with a few magic words.
The majority upholds the challenged sentences because they
are accompanied by a cursory statement that essentially renders
procedural mistakes irrelevant. This is perhaps the most
troubling aspect of the majority’s conclusion: the combination
of the district court’s statement and a one-sentence argument at
the end of the government’s brief is a sufficient basis for this
Court’s refusal to review the propriety of a sentencing
enhancement. As an initial matter, this approach deprives us of
the opportunity to address the applicability of sentencing
enhancements. More importantly, the practical effect of this
conclusion is the creation of a mechanism whereby district
courts may impose one-size-fits-all sentences that appellate
courts would refrain from meaningfully reviewing. Courts could
apply any number of enhancements to justify reaching the
sentence they desire, then use this Court’s harmless error
F.3d 609, 619 (4th Cir. 2010) (noting the “limited context” in
which this Court encouraged alternate sentences). However,
absent legal uncertainties of the magnitude present in the time
between Blakely v. Washington and Booker, I would not encourage
alternative sentences.
48
jurisprudence to prompt us to uphold a sentence that otherwise
lacks a sufficient justification. The notion of consistent
sentences for similarly situated defendants disappears where
errors regarding conduct and enhancements--errors which would
make defendants dissimilar--are swept under the rug of
harmlessness.
For these reasons, I remain unconvinced we have the
requisite knowledge for harmless error where, as here, the
district court merely announces an alternative variant sentence,
equal to the initial within-Guidelines sentence, without a
thorough explanation demonstrating that an error in calculating
the sentencing range had no bearing on the imposed sentence.
This would justify what would be an upward deviation from a
properly calculated Guidelines range. Therefore, I respectfully
dissent from the majority’s harmless error analysis. 8
8
I would further find that the application of the remaining
enhancements were erroneous and remand for resentencing. I
would find that the use of a minor enhancement does not apply to
Erasto because the evidence does not show anything more than
A.G.’s mere presence at drug deals involving Erasto. See ante
at 41 & n. 4. I would also find that the leadership enhancement
inapplicable to Juarez-Gomez because A.G. paying rent for the
place A.G. lives is not a criminal activity which could show
that Juarez-Gomez directed or supervised an act by A.G. that was
part of the conspiracy to distribute.
49