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Error in sentencing was harmless

Because the district court would have imposed the same sentence on an undocumented immigrant convicted of sexual battery and illegal reentry, the error made in the process was harmless.


Macias-Maldonado illegally entered the United States in 2006. In January 2010, Macias-Maldonado was removed from the United States, but sometime thereafter unlawfully reentered this country. In February 2017, Macias-Maldonado was convicted of a misdemeanor sexual battery in a Virginia court and sentenced to 12 months in prison.

In April 2017, Macias-Maldonado pleaded guilty in federal court to illegal reentry subsequent to a conviction for an aggravated felony (a 2009 forgery conviction). Applying the 2016 edition of the Sentencing Guidelines, Macias-Maldonado’s presentence report suggested a total offense level of 10. The PSR calculated an advisory guidelines range of 15 to 21 months.

At Macias-Maldonado’s sentencing hearing, the district court adopted the PSR. The court ruled that Macias-Maldonado’s total offense level of 10 failed to adequately account for the seriousness of the conduct underlying his 2017 sexual battery conviction. Utilizing the analogous offense approach, the court concluded that Macias-Maldonado’s total offense level for his illegal reentry offense of conviction should be 27. The court calculated Macias-Maldonado’s advisory guidelines range as 120 to 150 months in prison.

Having arrived at what it viewed as the proper guidelines range, the district court observed that a sentence at the bottom of that range would be greater than necessary to achieve the aims of sentencing. The court sentenced Macias-Maldonado to 48 months in prison.

Five days after the sentencing hearing — and prior to entry of the criminal judgment — the district court sua sponte entered an order vacating Macias-Maldonado’s sentence. In response, Macias-Maldonado objected to the court’s order and contended that it lacked jurisdiction to either vacate the 48-month sentence or conduct a resentencing. The government agreed with Macias-Maldonado that the court lacked the authority to vacate the sentence.

On Aug. 22, 2017, the district court conducted a hearing on the propriety of its July 18, 2017 order vacating Macias-Maldonado’s sentence. The court emphasized and confirmed that “the sentence would be the same no matter what happened.”

On Aug. 31, 2017, by way of a memorandum opinion relating to the post-sentencing hearing, the district court again explained that, at the sentencing hearing of July 13, 2017, it had departed upward to an advisory guidelines range of 120 to 150 months and then varied downward to a 48-month sentence. The opinion reiterated that the court had erred in calculating the permissible upward departure. The court therein explained, however — in agreement with the parties — that it lacked any authority to correct that error by way of vacatur of the 48-month sentence and a resentencing. In any event, the court specified that its sentencing error was harmless because it had “impose[d] the sentence that it independently determined was sufficient but not greater than necessary under 18 U.S.C. §3553(a).” That very day, the court entered an order vacating its sua sponte order of July 18, 2017, and reinstating Macias-Maldonado’s 48-month sentence.


Rather than resolve the merits of a guidelines calculation challenge, we are entitled to assume that a district court erred and evaluate whether that assumed error is harmless.

Macias-Maldonado argues that the first prong of the harmlessness inquiry is not satisfied in these proceedings. He contends that the record is equivocal concerning the district court’s intent to impose a 48-month sentence absent the advisory guidelines calculation error.

Our assessment of the record leads us to conclude that the district court would have imposed a 48-month sentence in any event. More specifically, even if the court had not miscalculated Macias-Maldonado’s advisory guidelines range by applying the base offense level applicable to the offense of aggravated sexual abuse, it would have reached the same result. Contrary to Macias-Maldonado’s contention, the court’s explanations at the post-sentencing hearing do not cast any doubt on its unambiguous intention to impose a 48-month sentence, regardless of the applicable guidelines range.

We will therefore turn to and assess the sole remaining question: whether the 48-month sentence imposed on Macias-Maldonado is substantively reasonable. Accepting Macias-Maldonado’s advisory guidelines range as 15 to 21 months, we are satisfied that his 48-month sentence is substantively reasonable.


United States v. Macias-Maldonado, Appeal No. 17-4614, Oct. 11 2018. 4th Cir. (per curiam), from EDVA at Richmond (Payne). Paul Geoffrey Gill for Appellant; Stephen David Schiller for Appellee. VLW No. 018-2-193, 13 pp.

VLW 018-2-193

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