     Case: 13-20236      Document: 00512591247         Page: 1    Date Filed: 04/09/2014




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

                                                                                    FILED
                                    No. 13-20236                                 April 9, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

APOLINO LUNA JIMENEZ, also known as Paul Luna, also known as
Apolonia Paul Luna, also known as Juan Juarez, also known as Apolino
Jimenez Luna, also known as Juan Ramos, also known as Apolonio A. Luna,
also known as Aopolonia Paul Luna, also known as Juan Antonio Luna,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-439-1


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
       Apolino Luna Jimenez (Jimenez) appeals the sentence imposed following
his guilty plea conviction for being unlawfully present in the United States
following removal subsequent to a conviction for an aggravated felony. He
argues that the district court erred by finding that the sentence for his prior


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20236    Document: 00512591247    Page: 2   Date Filed: 04/09/2014


                                No. 13-20236

conviction for aggravated assault of a family member was a sentence of
imprisonment of more than 60 days that counted for two criminal history
points. He maintains that a sentence of deferred adjudication probation with
inpatient drug treatment does not qualify as a sentence of imprisonment under
the Guidelines. The Government argues that the district court did not err and
that any error was harmless.
      The sentence of 71 months of imprisonment was within both the
guidelines range determined by the district court of 70-87 months of
imprisonment and the guidelines range asserted by Jimenez of 57-71 months
of imprisonment. The district court stated and explained a justifiable basis of
why it would impose the sentence of 71 months of imprisonment even if
Jimenez was correct about the proper guidelines sentence range. In light of
these circumstances, any error in calculating Jimenez’s criminal history
category was harmless. See United States v. Richardson, 676 F.3d 491, 511-12
(5th Cir. 2012).
      AFFIRMED.




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