     Case: 12-40584       Document: 00512243171         Page: 1     Date Filed: 05/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 15, 2013
                                     No. 12-40584
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MANUEL REYES-GUZMAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:11-CR-1218-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Manuel Reyes-Guzman (Reyes) appeals the 50-month sentence of
imprisonment imposed following his guilty plea conviction of being illegally
present in the United States after removal. He argues that the district court
erred procedurally in imposing a 16-level enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his Arkansas conviction of battery in the second
degree. We need not determine whether the district court so erred because the
error in applying the enhancement, if any, was harmless.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-40584     Document: 00512243171       Page: 2   Date Filed: 05/15/2013

                                   No. 12-40584

      As the Government notes, after imposing the 50-month sentence of
imprisonment, the district court indicated that it would impose the same
sentence based on the factors of 18 U.S.C. § 3553(a) no matter the guideline
range. In view of the foregoing, the Government has met its burden to establish
that any error in applying the § 2L1.2(b)(1)(A)(ii) enhancement was harmless.
See United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012).
      Reyes contends that the error in application of the enhancement should
not be considered harmless because the district court justified its alternative
sentence on the erroneous factual assumption that he had been in prison for
stabbing the victim of the Arkansas battery offense. Prior to imposition of
sentence, however, Reyes clarified the matter by notifying the district court that
the facts set forth in the Presentence Report showed that he had merely hit the
victim. The record therefore does not support a conclusion that the district
court’s statement that it would select the same sentence regardless of the
guideline range was “based on clearly erroneous facts.” Gall v. United States,
552 U.S. 38, 51 (2007).
      Reyes also asserts that he is entitled to relief because the district court
procedurally erred in not acknowledging the clarification. The issue is arguably
subject to plain error review given Reyes’s failure to object to the district court’s
explanation of its sentence. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). However, we need not decide whether plain error
review applies because the record establishes that the district court committed
no “significant procedural error,” Gall, 552 U.S. at 51, by imposing sentence
without explicitly acknowledging that Reyes had not stabbed the victim. This
“conceptually simple” matter was pointedly explained to the district court by
Reyes, and it is clear that the district court listened to and considered Reyes’s
argument. See Rita v. United States, 551 U.S. 338, 356 (2007).
      AFFIRMED.



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