     Case: 15-41415      Document: 00513543460         Page: 1    Date Filed: 06/10/2016




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

                                    No. 15-41415                                    FILED
                                  Summary Calendar                              June 10, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CANDIDO GARCIA SILVA, also known as Candido Garcia-Silva, also known
as Candido Silva Garcia, also known as Candido Silva-Garcia, also known as
Candido Garcia, also known as Enzique Castro,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-58-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Candido Garcia Silva appeals the 37-month sentence he received after a
jury found him guilty of possessing and concealing counterfeit money. He
challenges a sentencing enhancement the district court applied pursuant to
U.S.S.G. § 2B5.1(b)(2)(A) for production of the counterfeit bills. Although it
ordinarily results in only a two-point enhancement, the finding of production


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41415       Document: 00513543460         Page: 2    Date Filed: 06/10/2016


                                      No. 15-41415

results in a minimum offense level of 15. See U.S.S.G. § 2B5.1(b)(3). So
application of the enhancement increased Garcia’s offense level from11 to 15,
which changed the Guidelines range from 18-24 months to 30-37 months. 1
       No direct evidence exists to show that Garcia produced the counterfeit
bills in his possession.        The parties dispute whether the circumstantial
evidence is sufficient to establish that fact by the preponderance standard that
governs sentencing determinations. The Government also argues that any
error in applying the enhancement was harmless because the district court
stated it would apply the same sentence even if the enhancement for
production does not apply.
       We agree that any error would be harmless and thus do not decide if
there was sufficient evidence of production. After it imposed its sentence, the
district court told Garcia that even it if was “wrong on the enhancement,” a 37-
month sentence was “the appropriate sentence” and that it “would do an
upward variance to 37 months” based on Silva having had counterfeit bills on
multiple occasions and based on his criminal history.                   Considering this
statement, the district court undoubtedly would have imposed the 37-month
term of imprisonment regardless of the applicable guidelines range.                     And
Garcia raises no challenge to the substantive reasonableness of the 37 month
sentence.     Accordingly, any error the district court might have made in
applying the enhancement for production was harmless. See Richardson, 676
F.3d at 511-12.
       AFFIRMED.




       1 The district court applied a two-point enhancement pursuant to U.S.S.G. §
2B5.1(b)(2)(B)(i) because the counterfeit paper Garcia possessed is similar to a “distinctive
paper.” That enhancement, which is not challenged on appeal, increased the offense level
from the base level of 9 to 11.


                                             2
