Juarez was convicted of conspiring to distribute drugs and conspiring to possess firearms in the furtherance of a drug trafficking crime. At sentencing, the Pre-Sentencing Report (PSR) recommended a four-level enhancement because Juarez allegedly sold bulletproof vests to two people and the “vests were kept in stash houses where drugs drug proceeds and firearms were kept.”

Juarez argued that the vests were never “used” in the furtherance of the conspiracy. The district court disagreed, finding that “use” could be interpreted along with “barter” as an exchange of body armor for money. As a result, Juarez was sentenced to 365 months, the TOP of the guideline range after the increased sentence for the body armor. The court also said that if 3b1.5(2)(B) didn’t apply then an upward variance would have been applied and Juarez would have still gotten the same sentence.

3b1.5 says:

If—

(1) the defendant was convicted of a drug trafficking crime or crime of violence;

and

(2) (apply the greater)—

(A) the offense involved the use of body armor, increase by 2 levels; or

(B) the defendant used body armor during the commission of the offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense, increase by 4 levels.

The Fifth Circuit, agreeing with Juarez, held that the plain language of the Guideline showed that this enhancement was inapplicable. The language states that “use” either means “active employment in a manner to protect the person from gunfire” or “use as a means of bartering.” The Fifth Circuit has previously held that “barter” means to exchange one thing for another WITHOUT the use of money. Selling bulletproof vests for money, as Juarez did, was not “bartering.” The government argued that this would go against the purpose of the guideline and common sense, but was unable to support its position with any case law.

Next, the Fifth Circuit turned to whether this Guideline application error was harmless. An error is harmless only if the GOVERNMENT proves:

(1) “the district court would have imposed a sentence outside the properly calculated sentencing range for the same reasons it provided at the sentencing hearing” and (2) “the sentence the district court imposed was not influenced in any way by the erroneous Guidelines calculation.”

In this situation, the court not only sentenced Juarez to a higher range because of the body armor, but sentenced him to the high end of that range. However, the fact that Juarez was sentenced to the high end of the range was insufficient to show that the error was harmless.

Accordingly, the Fifth Circuit reversed. United States v. Juarez, No. 16-30773 (5th Cir. 2017).

JEREMY’S TAKE: You can’t barter something if you are actually selling it for cold hard dollars. A barter would be if you said, “I’ll give you ten macks if you cut my hair.” Or, “I got a book for one of them banana pudding bowls.” There is an exchange there, but not one of money. The other important thing about this decision is that the Fifth Circuit still ordered a resentencing in spite of the judge’s comments that he would have given the same sentence anyways. This goes to show how high the harmless error burden really is, if applied properly.

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