United States of America v. Elmer Vazquez-Lebron

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3222
UNITED STATES OF AMERICA
v.
ELMER VAZQUEZ-LEBRON,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 07-cr-00400)
District Judge: Honorable John E. Jones III
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 13, 2009

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The Honorable A. Wallace Tashima, Senior United*
States Circuit Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
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Before: FUENTES, CHAGARES, TASHIMA, Circuit*
Judges
(Filed: October 2, 2009)
Martin C. Carlson, United States Attorney
Christy H. Fawcett, Assistant U.S. Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108
Counsel for Appellee
James V. Wade, Federal Public Defender
Frederick W. Ulrich, Assistant Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
OPINION
TASHIMA, Circuit Judge:
On July 16, 2008, Elmer Vazquez-Lebron (“Vazquez”)

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was sentenced to 48 months’ imprisonment for conspiracy to
possess with intent to distribute 500 grams or more of cocaine
hydrochloride, in violation of 21 U.S.C. § 846. Vazquez
appeals, arguing that the District Court committed plain error by
failing to give him the benefit of the downward departure that it
granted in exchange for his substantial assistance in the
prosecution of other offenders. We agree and, therefore, will
vacate Vazquez’s sentence and remand to the District Court for
resentencing.
I. Facts and Procedural History
Vazquez pled guilty to one count of conspiracy to possess
cocaine with intent to distribute. The District Court calculated
Vazquez’s offense level as 23, and his criminal history category
as I. Under the Sentencing Guidelines, this yielded a range of
46 to 57 months’ imprisonment. At sentencing, the District
Court stated that, pursuant to the government’s motion and U.S.
SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 5K1.1, it
would grant a one-level downward departure because of
Vazquez’s substantial assistance in the prosecution of others,
reducing his offense level to 22. The sentencing range for
offense level 22, category I, offenders is 41 to 51 months’
imprisonment. Thus, the reduced sentencing range overlapped
with Vazquez’s initial sentencing range. The District Court
sentenced Vazquez to 48 months’ imprisonment – within the
new, lower guideline range, but also within the original, pre-
departure guideline range. Vazquez did not raise any objection
when the District Court imposed this sentence.
II. Jurisdiction

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United States v. Booker, 543 U.S. 220 (2005).1
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The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction to review the sentence pursuant to
18 U.S.C. § 3742 and 28 U.S.C. § 1291.
III. Discussion
Ordinarily, we review for abuse of discretion the
procedures a District Court follows in sentencing a defendant.
Gall v. United States, 128 S. Ct. 586, 597 (2007). Because,
however, Vazquez did not object to the sentence, we review for
plain error. United States v. Lloyd, 469 F.3d 319, 321 (3d Cir.
2006).
As we explained in United States v. Gunter, 462 F.3d 237
(3d Cir. 2006), sentencing, post-Booker, requires a three-step1
process:
(1) Courts must continue to calculate a defendant’s
Guidelines sentence precisely as they would have before
Booker.
(2) In doing so, they must formally rule on the motions of
both parties and state on the record whether they are
granting a departure and how that departure affects the
Guidelines calculation, and take into account our
Circuit’s pre-Booker case law, which continues to have
advisory force.

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(3) Finally, they are required to exercise their discretion
by considering the relevant [18 U.S.C.] § 3553(a) factors
in setting the sentence they impose regardless whether it
varies from the sentence calculated under the Guidelines.
Id. at 247 (internal quotation marks, citations, and alterations
omitted).
The District Court erred at the second step of the process.
The Court correctly calculated Vazquez’s Guidelines range of
46 to 57 months’ imprisonment. The Court then heard motions
from both parties regarding departure, and stated on the record
that it would grant a one-level downward departure in
recognition of Vazquez’s substantial assistance in the
prosecution of other defendants. The one-level departure
resulted in a range of 41 to 51 months, which overlapped with
the original range. A District Court need not follow a particular
formula in calculating a § 5K1.1 departure – it may be
appropriate to depart by a certain number of months or guideline
ranges below the initial sentencing range. United States v.
Floyd, 499 F.3d 308, 312 n.6 (3d Cir. 2007). In granting a
downward departure, however, a District Court must follow the
definition set out in the Sentencing Guidelines: a downward
departure is a “departure that effects a sentence less than a
sentence that could be imposed under the applicable guideline
range or a sentence that is otherwise less than the guideline
sentence.” U.S.S.G. § 1B1.1, cmt. n. 1.E. In other words, “the
sentence reached after granting a departure motion must be less
than the bottom of the otherwise applicable Guidelines range.”
Floyd, 499 F.3d at 312-13. By departing to a range that
overlapped with the original range, and then imposing a
sentence within both guideline ranges, the District Court did not

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This is not to say that the District Court could2
not have reasonably sentenced Vazquez to 48 months. “The
Court, for example, could have departed below the [46 to 57]
month range (at step 2), and then varied upward within the
range by balancing the § 3553(a) factors (at step 3). We
would review for reasonableness.” Floyd, 499 F.3d at 314.
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meet this requirement.2
Under the Guidelines, as interpreted by Floyd, Vazquez
was entitled to receive a preliminary sentence below the initial
guideline range. He could have been sentenced to 48 months
only if the District Court concluded, after careful consideration,
that a higher sentence was warranted because the preliminary
sentence failed to reflect the seriousness of the offense, §
3553(a)(2)(A), in order to avoid unwarranted sentencing
disparities among similar offenders, § 3553(a)(6), or because of
any other relevant factor under § 3553(a).
Although Vazquez failed to object to the sentence or the
sentencing procedure used in his case, we will nevertheless
remand for resentencing because the District Court’s decision
constituted plain error. Plain error requires the defendant to
demonstrate that the district court committed “an ‘error’ that is
‘plain’ and that ‘affect[s] substantial rights.’” United States v.
Olano, 507 U.S. 725, 732 (1993) (quoting FED. R. CRIM. P. 52).
An error affects substantial rights when it is “prejudicial: It must
have affected the outcome of the district court proceedings.” Id.
at 734. If these requirements are met, we may, at our discretion,
grant relief. Id. at 735-36. In general, we will grant relief “if

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the error ‘seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. at 736 (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)) (alteration in
original).
The error in sentencing Vazquez was plain because the
definition of “downward departure” in the Sentencing
Guidelines unequivocally provides that a downward departure
must result in a sentence below the otherwise applicable
guideline range, and we so held in Floyd, 499 F.3d 312-13.
Further, the error was prejudicial because we cannot be sure that
the district court would have imposed the same sentence if not
for the error. See United States v. Langford, 516 F.3d 205, 215
(3d Cir. 2008) (“For the error to be harmless, it must be clear
that the error did not affect the district court’s selection of the
sentence imposed.”).
The case at bench is unlike United States v. Faulks, 143
F.3d 133 (3d Cir. 1998), in which we held that the District
Court’s decision to sentence the defendant within the guideline
range after stating that it would grant a departure was harmless
error. Id. at 137. In Faulks, a pre-Booker case, in which the
procedure established by Gunter did not apply, it was clear that
the District Court intended to impose a sentence within the
guideline range. See id. at 135. When the court stated that it
would grant a departure, it essentially attached an incorrect label
to its decision to sentence the defendant within the initial
guideline range. See id. at 137. In the instant case, by contrast,
the District Court’s intentions are not at all clear. The Court
might have meant to depart below the guideline range, but then
vary the sentence upwards. Alternatively, the Court might not

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have realized that it had failed to give Vazquez the benefit of the
departure it had awarded. Because the Court did not accurately
follow the second and third steps of the procedure set out in
Gunter, 462 F.3d at 247, we cannot know the District Court’s
intention in sentencing Vazquez.
In the post-Booker era, very few procedural errors by a
District Court will fail to be prejudicial, even when the Court
might reasonably have imposed the same sentence under the
correct procedure. See Langford, 516 F.3d at 215-16. For
example, in Langford, we held that it was not harmless error for
the District Court to calculate the defendant’s guideline range as
if his criminal history placed him within category IV, when
category III would have been correct. Id. at 219. Although the
District Court’s ultimate sentence was within the guideline
range regardless of which criminal history category applied, we
concluded that “[t]he present case is not that rare case where we
can be sure that an erroneous Guidelines calculation did not
affect the sentencing process and the sentence ultimately
imposed.” Id. Had the Court applied the correct guideline
range, it might have sentenced the defendant differently. Id.
Similarly, in United States v. Lofink, 564 F.3d 232 (3d Cir.
2009), we held that it was not harmless error for the District
Court to consider a motion for a downward departure together
with the § 3553(a) factors in the third step of the Gunter
procedure, rather than as a discrete second step of the process.
Id. at 242. Although the District Court purported to take into
account the same factors at stage three that it should have
considered at stage two, the two stages are functionally
different: “a district court’s discussion at the variance stage does
not necessarily shed light on what it would have done at the

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departure stage.” Id. at 240.
The lesson of our post-Booker jurisprudence is that
different procedures may lead to different sentences, and thus an
error of procedure is seldom harmless. It is difficult to conclude
that a District Court would have reached the same result in a
given case merely because it could have reasonably imposed the
same sentence on a defendant. Because the District Court did
not properly apply step two and grant Vazquez the benefit of the
downward departure, we do not know whether the Court would
have left that lower sentence in place, or would have varied the
sentence upward at step three. This type of error in sentencing
may result in arbitrary differences in sentencing similarly
situated defendants; we, therefore, elect to exercise our
discretion and grant Vazquez relief in order to maintain the
fairness, integrity, and public reputation of judicial proceedings.
See United States v. Knight, 266 F.3d 203, 206 n.7 (3d Cir.
2001) (holding that it is presumptively appropriate to grant
discretionary relief to correct plain error in applying the
Sentencing Guidelines).
Because the District Court committed plain error in
imposing Vazquez’s sentence, we will VACATE the sentence
and REMAND the case for resentencing in accordance with this
opinion.

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