USA v. Juan Corona-Gonzalez.  09-3993.

Juan Corona-Gonzalez seeks review of a sentence imposed by the United States District Court for the Southern District of Indiana. A jury found Mr. Corona-Gonzalez guilty of possession with intent to distribute 500 grams or more of a mixture containing methamphetamine and possession of a firearm in furtherance of a drug trafficking crime. 

The district court sentenced him to a total of 300 months' imprisonment. 

Because the district court misapprehended a significant aspect of Mr. CoronaGonzalez's record at the time it imposed the sentence, we must reverse the judgment of the district court and remand the case to permit the district court to determine whether, without that misapprehension, it would have imposed a different sentence.

On February 13, 2008, Mr. Corona-Gonzalez was arrested during a DEA investigation in Indianapolis, Indiana, for allegedly delivering a substance containing methamphetamine to a confidential informant in a WalMart Supercenter parking lot.

In 1998. Mr. Corona-Gonzalez entered this Country, with his mother and siblings, pursuant to a lawfully issued visa to join his father, who already resided here.  In 2002, Mr. Corona-Gonzalez's mother and siblings returned voluntarily to Mexico.  Mr. Corona-Gonzalez, whose visa had expired, remained in the United States illegally.  Mr. Corona had never been deproted from the United States. 

In Mr. Corona-Gonzalez's view, the district court's repeated references to a previous removal and return to the United States during the sentencing hearing demonstrates that this mistake of fact significantly impacted the court's decision and may have ultimately affected the length of his sentence.

A district court commits a significant procedural error in sentencing when it "fail[s] to calculate (or improperly calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence." Gall v. United States, 552 U.S. 38, 51 (2007). Usually, we review procedural errors under a nondeferential standard. See, e.g., United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). However, because Mr. Corona-Gonzalez did not object to the alleged procedural deficiency at the time of sentencing, we review for plain error.

There is no question that a procedural error occurred during Mr. Corona-Gonzalez's sentencing hearing.  Neither side disputes that the error was "plain"; the only mention of the previous removal of Mr. Corona-Gonzalez anywhere in the record was by the court at sentencing.

We turn now to the question of whether the plain error affected Mr. Corona-Gonzalez's substantial rights. In the context of other procedural errors, we have recognized that, in the ordinary case, a defendant shoulders the burden of demonstrating that the error resulted in prejudice to him. See, e.g., United States v. Luepke, 495 F.3d 443, 450-51 (7th Cir. 2007). We see no reason why this rule should not apply when the issue is whether a district court relied on a clearly erroneous fact at sentencing. Indeed, we have stated that, in the plain error context, we shall reverse when it is "necessary to avoid a miscarriage of justice." United States v. Raney, 342 F.3d 551, 559 (7th Cir. 2003) 

Therefore, we must determine whether the district court's repeated references to an erroneous fact in imposing Mr. CoronaGonzalez's sentence is not only "palpably wrong," but also likely to "have resulted in a different sentence." United States v. Flores-Sandoval, 94 F.3d 346, 351 (7th Cir. 1996).

In stating its reasons for the sentence it imposed, the court refers to the defendant's supposed prior removal and re-entry into the United States not once, but three times. In fact, in stating the reasons for imposing the chosen sentence, the very first factor the court addressed was the supposed removal and re-entry.

In assessing the sentencing transcript in this case, we consider those factors that the judge deemed important or salient in reaching his decision.

We must conclude on the record before us that the district court, although certainly very cognizant of the need to protect the public and promote deterrence, nevertheless gave significant weight to its misapprehension of the defendant's removal and re-entry in order to commit drug trafficking offenses. Therefore, it simply is "not improbable that the trial judge was influenced by improper factors in imposing sentence." Rizzo v. United States, 821 F.2d 1271, 1274 (7th Cir. 1987).

It is established firmly that "convicted defendants have a due process right to be sentenced on the basis of accurate and reliable information." United States v. Kovic, 830 F.2d 680, 684 (7th Cir. 1987); see also United States v. Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 740-41 (1948).If the district court did indeed sentence Mr. Corona-Gonzalez based on a fact not supported by the record, it would deprive Mr. Corona-Gonzalez of this right.

Consequently, even under plain error review, we must afford him an opportunity to have the district court reassess his sentence.

REVERSED and REMANDED

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