Court Splits On Assumed Harmless Error Analysis For Within Guideline Sentences

US v. Gomez-Jimenez: This is a consolidated appeal involving two codefendants, Gomez-Jimenez and Juarez-Gomez (there was a third defendant, Pedro, who didn't appeal).  Investigators used a CI to make several controlled purchases of cocaine from Juarez-Gomez.  After the final buy, Juarez-Gomez was arrested and officers went to search a mobile home, where Gomez-Jimenez and a minor were located, along with drugs, cash, and a firearm.  All three defendants were charged with conspiracy to distribute and possession with intent, with Juarez-Gomez additionally being charged with four counts of distribution and being an illegal alien in possession of a firearm.  Gomez-Jimenez pleaded guilty to both counts.  The district court imposed a sentence of 180 months in prison, noting that even if it had calculated the Guidelines incorrectly, it would impose the same sentence.  Juarez-Gomez went to trial and was convicted on all counts, aside from the firearm count.  He was sentenced to 390 months in prison, with the district court again noting it would have imposed the same sentence regardless of the Guideline calculations.

The Fourth Circuit affirmed all sentences and convictions, but not unanimously.  Juarez-Gomez challenged conspiracy and possession with intent convictions, which the court concluded were supported by sufficient evidence.  As to sentencing, Juarez-Gomez argued that the district court erred by enhancing his sentence for use of a minor to commit or avoid detection or apprehension for the offense.  Recognizing that the enhancement only applies where there is evidence "beyond the minor's mere presence," the court concluded that the district court did not clearly err in applying the enhancement because there was sufficient evidence that the minor was involved with the offense.  Gomez-Jimenez argued that the district court erred by enhancing his sentence for possession of a firearm because he did not possess a firearm during any drug transaction.  The court disagreed, noting that three guns were found in the trailer (along with Gomez-Jimenez) and there was ample evidence to support the enhancement.  Both defendants challenged another enhancement, but the court declined to address them on the merits and proceeded to an assumed harmless error analysis.  The court concluded that the district court had expressly stated it would have applied the same sentences regardless of any Guideline calculation error and the resulting sentences were substantively reasonable.

Judge Gregory concurred with regards to Juarez-Gomez's convictions and Gomez-Jimenez's firearm enhancement, but dissented with regards to everything else.  First, he argued that the definition of "use" in the Guidelines with regard to a minor is "elastic," but did not stretch so far as to include the conduct in this case.  Second, he argued that the district court's announcement that it would have imposed the same sentences regardless of the Guidelines calculations was not sufficient for the court to be "clear" such would have happened, as the sentences then imposed would have been large upward variances that the district court did not justify.