     Case: 17-20752      Document: 00514572256         Page: 1    Date Filed: 07/26/2018




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

                                                                                FILED
                                    No. 17-20752                            July 26, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

SALVADOR ANTONIO CRUZ,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-632-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Salvador Antonio Cruz appeals the sentence he received upon his
conviction following a guilty plea under 8 U.S.C. § 1326(a) and (b)(1).
Specifically, he challenges the district court’s failure to award him a reduction
in his guidelines level for acceptance of responsibility. We AFFIRM.
       We pretermit the question of whether the district court erroneously
denied an acceptance of responsibility reduction because we conclude that any


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20752        Document: 00514572256          Page: 2     Date Filed: 07/26/2018



                                        No. 17-20752
error was harmless. At the sentencing hearing, Cruz’s counsel specifically
referenced the range that would be correct if credit had been granted for
acceptance of responsibility. Thus, the district court explicitly had before it
both ranges, one with the credit and one without. The district court also
expressly stated: “if I gave [credit] to him, I would vary upwards to reach the
same outcome.”
       Cruz argues that such a statement is insufficient to establish
harmlessness, citing United States v. Tanksley, 848 F.3d 347, 353 (5th Cir.
2017) (“Tanskley I”) for the proposition that the district court must state that
it would impose “the same sentence for the same reasons.” In so doing, he fails
to cite to the supplemental opinion in Tanskley which made clear that Tanksley
was addressing only one of the ways that harmlessness in sentencing can be
established. United States v. Tanksley, 854 F.3d 284, 286 n.1 (5th Cir. 2017).
       We have stated that “there are two ways to show harmless error if the
wrong guidelines range is employed.” United States v. Guzman-Rendon, 864
F.3d 409, 411 (5th Cir.), cert. denied, 138 S. Ct. 524 (2017). One is the way
addressed in Tanskley I, where the record shows that the district court would
give the same sentence for the same reason. But the other way, not supported
by the record in Tanksley I, is to show “that the district court considered both
ranges . . . and explained that it would give the same sentence either way.”
Guzman-Rendon, 864 F.3d at 411. That is exactly what happened here. We
conclude, therefore, than any error was harmless. 1 AFFIRMED.



       1   In a footnote, Cruz makes reference to this line of cases and argues that the district
court did not consider the correct range because the judge did not expressly say “24-30
months.” However, the sentencing transcript reveals that both sides agreed that the proper
range, if acceptance of responsibility credit was granted, was 24-30 months. Only two ranges
were considered: the one Cruz calls “incorrect” (30-37 months) and the one he calls “correct”
(24-30 months). Thus, the record demonstrates that the district court considered that range;
it was not necessary to use “magic words.” United States v. Vega-Garcia, 893 F.3d 326, 328
(5th Cir. 2018).
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