Filed: Aug. 31, 2020
Latest Update: Sep. 01, 2020
Summary: Case: 19-40586 Document: 00515547038 Page: 1 Date Filed: 08/31/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 31, 2020 No. 19-40586 Lyle W. Cayce consolidated with 19-40588 Clerk United States of America, Plaintiff—Appellee, versus Rene Izaguirre, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Texas USDC No. 1:13-CR-689-1 USDC No. 1:12-CR-1043-1 Before Owen, Chief Judge, and Denn
Summary: Case: 19-40586 Document: 00515547038 Page: 1 Date Filed: 08/31/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 31, 2020 No. 19-40586 Lyle W. Cayce consolidated with 19-40588 Clerk United States of America, Plaintiff—Appellee, versus Rene Izaguirre, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Texas USDC No. 1:13-CR-689-1 USDC No. 1:12-CR-1043-1 Before Owen, Chief Judge, and Denni..
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Case: 19-40586 Document: 00515547038 Page: 1 Date Filed: 08/31/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 31, 2020
No. 19-40586 Lyle W. Cayce
consolidated with 19-40588 Clerk
United States of America,
Plaintiff—Appellee,
versus
Rene Izaguirre,
Defendant—Appellant.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-689-1
USDC No. 1:12-CR-1043-1
Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.
Priscilla R. Owen, Chief Judge:
Rene Izaguirre was convicted for a drug trafficking offense but failed
to appear for sentencing. He was subsequently apprehended and convicted
separately for failing to appear. A single sentencing hearing was conducted,
and Izaguirre was sentenced to 108 months in prison for the drug offense and
to a consecutive term of 108 months in prison for failing to appear at his
original sentencing hearing. He contends that the district court procedurally
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No. 19-40586
erred in arriving upon the sentence for failure to appear. We vacate the
sentence in its entirety and remand for resentencing.
I
In January of 2013, Rene Izaguirre pleaded guilty pursuant to a plea
agreement to conspiracy to possess with intent to distribute in excess of 100
kilograms of marijuana. Five weeks before his sentencing hearing was to
occur, he removed a location monitoring device, absconded, and was a
fugitive for five years until he was arrested for another drug trafficking
offense. He thereafter pleaded guilty to failing to appear in violation of 18
U.S.C. § 3146(a)(1). The district court held a hearing at which Izaguirre was
sentenced for both offenses.
The Presentence Investigative Report (PSR) grouped the drug and the
failure-to-appear offenses, treating the failure-to-appear offense as an
obstruction of justice adjustment to the underlying drug conviction, citing
§§ 3D1.2(c), 5G1.2, and 2J1.6 comment (Note 3) of the Guidelines. 1 The
PSR calculated an advisory guidelines range of 210 to 262 months of
imprisonment as to Izaguirre’s drug conviction in accordance with the U.S.
Sentencing Guidelines Manual (2018). However, the Government had
entered into an agreement and stipulation with Izaguirre when he pleaded
guilty to the drug offense and advised the district court that it would honor
that agreement. The district court gave effect to the agreement and
stipulation, resulting in a Guidelines range of 108 to 135 months of
imprisonment for the drug offense. The PSR advised that “the Court must
impose a sentence on the underlying offense and a consecutive sentence on
the Failure to Appear offense, that taken together, reach a specific point
1
See U.S. Sentencing Guidelines Manual §§ 3D1.2(c), 5G1.2, 2J1.6
cmt. n.3 (U.S. Sentencing Comm’n 2018).
2
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No. 19-40586
within the guideline range that results in a total punishment for both cases.”
The Government correctly informed the court at the sentencing
hearing that any sentence as to the failure-to-appear conviction was
statutorily required to run consecutively with any sentence imposed as to
Izaguirre’s drug conviction. 2 However, the Government mistakenly advised
the court that a second, additional advisory guidelines range of 108 to 135
months of imprisonment applied to the failure-to-appear conviction, capped
by the 120-month statutory maximum penalty applicable to that offense.
When the district court sought comments from defense counsel and the
probation officer as to the accuracy of the Government’s assertions, they
agreed with the Government’s assessment. The district court then
concluded that the advisory guidelines range as to the failure-to-appear
conviction was 108 to 120 months of imprisonment. The record indicates
that all parties understood this range to be an additional, consecutive
punishment range to the range previously calculated for Izaguirre’s
underlying drug offense.
Thereafter, the court heard arguments from the parties and permitted
Izaguirre to allocute. The court imposed a 108-months’ sentence as to
Izaguirre’s underlying drug offense, as recommended by the Government.
The court then imposed a consecutive 108-months’ sentence for Izaguirre’s
failure-to-appear conviction.
Izaguirre filed a notice of appeal as to both judgments, which we
consolidated for purposes of appeal. His brief, however, challenges only the
sentence for his failure-to-appear conviction.
2
See 18 U.S.C. § 3146(b)(2).
3
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II
Izaguirre maintains that the district court procedurally erred in
calculating the advisory guidelines range applicable to his failure-to-appear
conviction. 3 Because Izaguirre did not object to the advisory guidelines
calculation during sentencing, his contentions are subject to plain error
review on appeal. 4 To prevail, he “must show (1) an error (2) that is clear or
obvious, (3) that affects substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” 5
In analyzing whether there was an error, we must first determine
whether our decision in United States v. Packer remains authoritative. 6 We
held in that case that the district court did not err in failing to group a failure-
to-appear offense with the underlying offense as contemplated by § 2J1.6 of
the Guidelines, including specifically Note 3 in the commentary to that
section. Our holding was based on the conclusion that this Guidelines
provision conflicted with 18 U.S.C. § 3146. We reasoned that applying this
section of the Guidelines “would defeat the statutory intent that a failure to
appear offense be considered separate and distinct from the underlying
offenses, warranting a separate and distinct penalty.” 7
The Sentencing Commission amended Note 3 in 1998, at least
3
See Gall v. United States, 552 U.S. 38, 51 (2007) (noting that district courts
commit “significant procedural error” when they “fail[] to calculate (or improperly
calculat[e]) the [g]uidelines range”).
4
United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
5
United States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017) (internal quotation marks
omitted) (quoting United States v. Mendoza–Velasquez,
847 F.3d 209, 212 (5th Cir. 2017)).
6
70 F.3d 357, 359-60 (5th Cir. 1995).
7
Id. at 360.
4
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partially in response to our analysis in Packer. 8 It is clear from Amendment
579 that the Commission intended the revisions to the commentary to § 2J1.6
to result in rulings different from our holding in Packer. Amendment 579
stressed no less than three times in the “Reason for Amendment” section
that the amendment’s purpose was “to ensure an incremental, consecutive
penalty for a failure to appear count.” 9 Among other revisions, Note 3 to the
commentary to § 2J1.6 was amended to add the following sentence, in a
parenthetical: “(Note that the combination of this instruction and increasing
the offense level for the obstructive, failure to appear conduct has the effect
of ensuring an incremental, consecutive punishment for the failure to appear
count, as required by 18 U.S.C. § 3146(b)(2).).” Corresponding
amendments were made to other Guidelines sections.
We conclude that the amendments, including those to the
commentary to § 2J1.6, make sufficiently clear that, though a failure-to-
appear-for-sentencing offense is grouped with an underlying offense for
purposes of sentencing, the failure-to-appear offense remains a separate
8
U.S. Sentencing Guidelines Manual app. C, amend. 579, at 7-12
(U.S. Sentencing Comm’n 1998) (“The purpose of this amendment is to clarify how
several guideline provisions, including those on grouping multiple counts of conviction,
work together to ensure an incremental, consecutive penalty for a failure to appear count.
This amendment addresses a circuit conflict regarding whether the guideline procedure of
grouping the failure to appear count of conviction with the count of conviction for the
underlying offense violates the statutory mandate of imposing a consecutive sentence.
Compare United States v. Agoro, 996 F.2d 1288 (1st Cir. 1993) (grouping rules apply), and
United States v. Flores, No. 93-3771,
1994 WL 163766 (6th Cir. May 2, 1994) (unpublished)
(same), with United States v. Packer,
70 F.3d 357 (5th Cir. 1995) (grouping rules defeat
statutory purposes of 18 U.S.C. § 3146), cert. denied,
117 S. Ct. 75 (1996).”).
9
Id. at 11; see also
id. at 11-12 (asserting that the amendment “explains how the
guideline provisions work together to ensure an incremental, consecutive penalty for the
failure to appear count,” and “the amendment . . . states that the method outlined for
determining a sentence for failure to appear and similar statutes ensures an incremental,
consecutive punishment”).
5
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No. 19-40586
offense, and an incremental, consecutive punishment for the failure to appear
in court is applied under the Guidelines. 10 That is achieved, at a minimum,
by the increase in the offense level as a result of the failure-to-appear
conviction and by requiring the sentencing court to specify a term of
imprisonment, if imprisonment is imposed, within the “total punishment”
that is punishment specifically for the failure to appear in court and that is
consecutive to the punishment for the underlying offense. We are in accord
with the Second Circuit in our construction of Amendment 579. 11
Our conclusion is also consistent with United States v. Posey, an
unpublished opinion that addressed Note 3 shortly after it was amended. 12 A
panel of this court held that a district court plainly erred in not grouping a
defendant’s failure-to-appear conviction with his underlying conviction.
We recognize that another unpublished decision of our court was of
the view that the amendments to the commentary to § 2J1.6 “only confused
the issue further.” 13 But the holding of that opinion was that the district
court’s decision to apply the grouping methodology did not amount to
reversible, plain error. 14 We disagree that Amendment 579 further confused
10
See also United States v. Kirkham, 195 F.3d 126, 133 (2d Cir. 1999) (concluding
that “the 1998 Guidelines . . . definitely resolve the previous conflict among the circuits
regarding the grouping of failure to appear convictions, see U.S.S.G. Supplement to App.
C, Amendment 579 (1998) (citing circuit conflict), and which also resolve that Kirkham’s
failure to appear count should be grouped with his underlying offense”).
11
See id.
12
No. 99-10175,
1999 WL 824519 (5th Cir. Oct. 1, 1999) (per curiam); see also
United States v. Mays, 770 F. App’x 679, 680 (5th Cir. 2019) (per curiam) (noting that Note
3 of the commentary requires a defendant’s failure-to-appear conviction to be grouped with
the defendant’s underlying convictions).
13
United States v. McLymont, 220 F. App’x 251, 252 (5th Cir. 2007) (per curiam).
14
Id.
6
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whether § 2J1.6 conflicts with 18 U.S.C. § 3146, but in any event, the
unpublished opinion’s observation in McLymont is not binding precedent.
The district court in the present case undertook to group the failure-
to-appear offense with the underlying drug offense in accordance with
§ 3D1.2(c) and § 2J1.6. It was not error to do so. But Izaguirre maintains
that the district court erred in concluding that a second advisory sentencing
range of 108 to 120 months applied separately to the conviction for failing to
appear for sentencing. We turn to that question.
III
Izaguirre asserts that “[a] violation of 18 U.S.C. § 3146(b)(1)(A)
triggers the application of U.S.S.G. § 2J1.6; which, requires that Appellant’s
base offense level begin at six (6).” This is incorrect. Note 3 in the
commentary to § 2J1.6 makes plain how the applicable guidelines range is to
be calculated. It clearly provides that in a case involving a failure to appear
for sentencing, “the failure to appear is treated under § 3C1.1” and “the
grouping rules of §§ 3D1.1–3D1.5 apply.” 15 Note 3 does not contemplate the
procedure Izaguirre describes. A district court would not be prohibited from
making a calculation as if the failure-to-appear-for-sentencing conviction was
to be treated under the Guidelines as a standalone offense in order to obtain
perspective on the appropriate punishment for failure to appear for
sentencing. But such a calculation would play no part in determining the
applicable guidelines range under § 3D1.2. The district court did not err in
failing to consider what the sentencing range would have been for failure to
appear at sentencing had that offense not been grouped with the drug offense.
15
U.S. Sentencing Guidelines Manual § 2J1.6 cmt. n.3 (U.S.
Sentencing Comm’n 2018).
7
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We agree with the Seventh Circuit in this regard. 16
At the sentencing hearing, the Government took the position that the
108 to 135 months’ range of imprisonment applied separately to the failure-
to-appear offense, but that it was capped by the 120 months’ statutory
maximum. The Government now concedes on appeal that the district court
“erred when it did not consider a ‘total punishment.’” The Government
asserts, however, that Izaguirre forfeited any argument regarding a “total
punishment” by failing to brief the issue adequately. We disagree.
Izaguirre’s initial brief makes plain that he is challenging the application of a
108 to 120 months’ range of imprisonment to the failure-to-appear offense
and why.
We agree with the Government that the district court erred in
calculating and applying a second, separate 108 to 120 months’ advisory
guidelines range to the conviction for failure to appear at sentencing. The
108 to 135 months’ range calculated on the basis of the agreement and
stipulation was the applicable range. The district court was free to impose a
sentence greater than 135 months of imprisonment, but it is clear from the
record that its decision to impose two, consecutive sentences of 108 months
of imprisonment stemmed directly from its misunderstanding of how the
applicable advisory Guidelines range was to be determined.
The government mistakenly asserted at the sentencing hearing that
the ranges for the two offenses “kind of merge” under the guidelines and was
108 to 120 months of imprisonment. Defense counsel and the probation
officer likewise agreed with the government’s mistaken assessment. The
district court accepted these assurances that the correct range was an
additional 108 to 120 months of imprisonment. That error is clear in light of
16
See United States v. Hallahan, 756 F.3d 962, 980-81 (7th Cir. 2014).
8
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the Guidelines, it affected Izaguirre’s substantial rights, 17 and it seriously
affected the fairness, integrity, or public reputation of judicial proceedings. 18
Accordingly, we vacate Izaguirre’s sentence and remand the case for
resentencing. Because the district court committed a plain procedural error
in determining the sentence for Izaguirre’s failure-to-appear conviction, we
do not review the substantive reasonableness of the sentence. 19
* * * * *
The judgment as to Izaguirre’s convictions is AFFIRMED. The
sentence is VACATED and the case is REMANDED to the district court
for resentencing.
17
Molina–Martinez v. United States, 136 S. Ct. 1338, 1347 (2016) (“Where . . . the
record is silent as to what the district court might have done had it considered the correct
[g]uidelines range, the court’s reliance on an incorrect range in most instances will suffice
to show an effect on the defendant’s substantial rights.”).
18
See Rosales–Mireles v. United States, 138 S. Ct. 1897, 1909 & n.4 (2018) (noting
that “[i]n the ordinary case, proof of a plain [g]uidelines error that affects the defendant’s
substantial rights is sufficient to” establish that the “error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings” (second alternation in original)
(quoting United States v. Vonn,
535 U.S. 55, 63 (2002))).
19
See United States v. Delgado–Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009)
(citing Gall v. United States,
552 U.S. 38, 51 (2007)).
9
