     Case: 15-41441      Document: 00514177189         Page: 1    Date Filed: 09/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-41441                                  FILED
                                 Conference Calendar                      September 29, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

              Plaintiff – Appellee,

v.

ABEL RODRIGUEZ-RODRIGUEZ,

              Defendant – Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-796-1


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       This case was remanded by the United States Supreme Court for further
consideration in light of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017),
in which the Court held a victim must be younger than 16 years of age for a
statutory rape offense based solely on the age of the participants to qualify as
the generic federal definition of sexual abuse of a minor. In determining
Defendant-Appellant Abel Rodriguez-Rodriguez’s offense level under the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 15-41441
United States Sentencing Guidelines, the district court applied a sixteen-level
“crime of violence” enhancement based on his prior Texas felony conviction for
indecency with a child by contact. The district court overruled Rodriguez-
Rodriguez’s objection that the Texas statute, which criminalizes certain
conduct with “a child younger than 17 years,” does not constitute abuse within
the meaning of sexual abuse of a minor, an enumerated “crime of violence.” In
light of Esquivel-Quintana’s holding, and because the district court did not
clearly indicate it was not influenced by its incorrect Guidelines calculation
applying the sixteen-level enhancement, we vacate Rodriguez-Rodriguez’s
sentence and remand for resentencing.
      As the Government admits, the district court erred by treating
Rodriguez-Rodriguez’s conviction for indecency by contact with a child under
the age of 17 as a crime of violence under the applicable guideline.        See
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568–73 (2017). We must now
determine, however, whether this procedural error was harmless. “Even when
a court does not consider the proper sentencing range, an error in the
guidelines calculation can still be considered harmless.”    United States v.
Juarez, 866 F.3d 622, 633 (5th Cir. 2017) (quoting United States v. Martinez-
Romero, 817 F.3d 917, 924 (5th Cir. 2016)). “But it is the Government’s ‘heavy
burden’ to prove that (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.’” Id. at 634 (quoting Martinez-Romero, 817 F.3d at 924). Here, the
Government cannot meet its heavy burden.
      The Government argues that the Guidelines error was harmless given
the district court’s “ample explanation” regarding its selection of a 57-month
sentence and statements by the district court that it would impose the same
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                                 No. 15-41441
sentence “even if the law should change as to the enhancement.” Nonetheless,
the district court imposed a sentence within the improperly scored Guidelines
range and failed to make clear that its decision was made without influence by
this range. In similar cases, this Court has held that such explanations and
statements are alone insufficient to support a finding with the requisite
certainty that the error was harmless. See Juarez, 866 F.3d at 634–45; United
States v. Rico-Mejia, 859 F.3d 318, 324–25 (5th Cir. 2017); United States v.
Tanksley, 848 F.3d 347, 353 (5th Cir. 2017); Martinez-Romero, 817 F.3d at 924–
26; see also United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (“[A]
guidelines calculation error is harmless where the district court has considered
the correct guidelines range and has stated that it would impose the same
sentence even if that range applied.”). We reach the same conclusion here.
      Accordingly,   we    VACATE      Rodriguez-Rodriguez’s     sentence    and
REMAND to the district court for resentencing consistent with this opinion.




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