     Case: 15-51217        Document: 00513904583          Page: 1     Date Filed: 03/09/2017




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

                                        No. 15-51217
                                                                                  Fif h Circuit

                                                                                FILED
                                                                            March 9, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                              Plaintiff - Appellee

v.

SANTIAGO SANCHEZ, also known as Santiago Sanchez, Jr.,

                              Defendant - Appellant



                     Appeal from the United States District Court
                          for the Western District of Texas


Before JONES and OWEN, Circuit Judges, and ENGELHARDT ∗, District
Judge.

PER CURIAM:
      Appellant Santiago Sanchez pled guilty to aiding and abetting a bank
robbery and received a six-point enhancement for otherwise using a firearm
during commission of the robbery. On appeal, he challenges this six-point
enhancement. We hold that any alleged error is harmless. The judgment is
AFFIRMED.




      ∗
          District Judge of the Eastern District of Louisiana, sitting by designation.
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                                  No. 15-51217
                                 BACKGROUND
       Sanchez pled guilty to aiding and abetting a bank robbery in violation of
18 U.S.C. § 2113(d) and 18 U.S.C. § 2.           The Presentence Report (PSR)
established a base offense level of 20.          It also applied various other
enhancements for conduct specific to this offense, including a six-level
enhancement under U.S.S.G. § 2B3.1(b)(2)(B) for “otherwise using” a firearm
during commission of the robbery.           Sanchez objected to this six-level
enhancement. The district court overruled Sanchez’s objection and determined
that a six-level enhancement was proper under the Guidelines because there
was testimony that the defendants entered the building and announced that
they had a gun.
       Sanchez’s total offense level was set at 31. Given his criminal history
category of III, the resulting advisory Guidelines range was 135–168 months
of imprisonment. The district court adopted the PSR and sentenced Sanchez
to 135 months followed by supervised release for five years.           The court
explicitly stated that even if it had erred in applying the six-level
enhancement, it would have imposed the same sentence.            Sanchez timely
appealed.
                                 DISCUSSION
       On appeal, Sanchez asserts that the district court erred by applying a
six-point enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for using a
firearm during the robbery. Sanchez contends that a four-level or five-level
enhancement was more appropriate because his conduct was more consistent
with     “brandishing”    the     firearm     than    “otherwise     using”     it.
U.S.S.G. § 2B3.1(b)(2)(C)–(D).
       When a defendant objects to a sentencing enhancement, this court
“reviews the district court’s interpretation and application of the Guidelines de
novo and its factual findings for clear error.”      United States v. Johnson,
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                                  No. 15-51217
619 F.3d 469, 472 (5th Cir. 2010).      The factual statements in a PSR are
“presumed reliable and may be adopted by the district court ‘without further
inquiry’ if the defendant fails to demonstrate by competent rebuttal evidence
that the information is ‘materially untrue, inaccurate, or unreliable.’” United
States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal citation omitted).
      Assuming arguendo that the district court procedurally erred, any error
was harmless. Not every procedural error requires reversal. United States v.
Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). An error is harmless, and
does not mandate reversal, if “the error did not affect the district court’s
selection of the sentence imposed.” Id. Even when a district court does not
consider the correct guidelines range, an error is harmless if the district court
would have imposed the same sentence for the same reasons, regardless of an
erroneous Guidelines calculation. United States v. Ibarra-Luna, 628 F.3d 712,
714 (5th Cir. 2010). When it is clear that the “court wanted to ‘moot’ the
defendant’s objection—by ordering a sentence that effectively grants counsel’s
objection—the appeal of the ‘sentencing error’ makes no sense.” United States
v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017).
      In imposing a 135-month sentence, the district court stated “to the extent
that I erred in the application of the enhancement of plus six, the sentence
would still be the same.” This court has held that similar statements during
sentencing provide sufficient basis to conclude that any potential error
resulting from an improperly calculated Guidelines range is harmless. United
States v. Castro-Alfonso, 841 F.3d 292, 298–99 (5th Cir. 2016); United States v.
Richardson, 713 F.3d 232, 237 (5th Cir. 2013). We do not require the district
court to recite “magic words.” Shepherd, 848 F.3d at 427. The district court
made it abundantly clear that it would have imposed this sentence, regardless
of whether it improperly calculated the appropriate Guidelines range by
including the six-level enhancement.
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                          No. 15-51217
                         CONCLUSION
 The appellant’s sentence is AFFIRMED.




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