     Case: 16-40731      Document: 00513990871         Page: 1    Date Filed: 05/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                      No. 16-40731                                  FILED
                                                                                May 12, 2017

UNITED STATES OF AMERICA,
                                                                               Lyle W. Cayce
                                                                                    Clerk

              Plaintiff - Appellee

v.

FREDY DONALDO RODRIGUEZ-MARTINEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:16-CR-95-1


Before STEWART, Chief Judge, HIGGINBOTHAM and COSTA, Circuit
Judges.
PER CURIAM:*
       Fredy Donaldo Rodriguez-Martinez pleaded guilty to unlawfully
reentering the United States following deportation in violation of 8 U.S.C.
§ 1326. Over his objection, the district court applied the 12-level “crime of
violence” sentencing enhancement under § 2L1.2 of the 2015 United States
Sentencing Guidelines. The enhancement was based on Rodriguez-Martinez’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40731
pre-deportation conviction for second-degree burglary of an occupied dwelling
in violation of Florida Stat. § 810.02. With a base offense level of 8, plus the
12-level crime-of-violence enhancement, minus a 3-level reduction for
acceptance of responsibility, Rodriguez-Martinez’s total offense level was 17.
That level, coupled with a criminal history category of II, resulted in a
recommended Guidelines range of 27–33 months’ imprisonment.
      The district court chose to upward depart from that recommended range
because   it   found   that   Rodriguez-Martinez’s    criminal    history   was
underrepresented. Taking note of the fact that Rodriguez-Martinez had
previously been convicted for illegal reentry and sentenced to 37 months, it
followed suit with a 37-month sentence (four months more than the Guidelines-
recommended maximum). The court stated: “And I want the record to be clear
that even if the [crime-of-violence] objection should have been sustained, my
sentence would not change. I’ve considered all of that, and for the reasons
articulated, this would be my sentence.”
      Rodriguez-Martinez timely appealed. We review the application of
§ 2L1.2’s crime-of-violence enhancement de novo. United States v. Ortega-
Gonzaga, 490 F.3d 393, 394 (5th Cir. 2007). While the parties engage over error
in the enhancement, we affirm on the basis that any error was harmless. The
court may, in its discretion, raise the harmless-error defense sua sponte even
where the government declines to argue it. See United States v. Miranda, 248
F.3d 434, 443–44 (5th Cir. 2001).
      As noted, the district court made clear that it would have imposed the
same, 37-month sentence even if it had sustained Rodriguez-Martinez’s
objection to the crime-of-violence enhancement. Though not inevitably
dispositive, the explanation is strong evidence of a want of harm in rejecting
the objection. See United States v. Shepherd, 848 F.3d 425, 426 (5th Cir. 2017)
(error harmless where the district court stated that it sought to “moot” the
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                                 No. 16-40731
defendant’s challenge). As Rodriguez-Martinez correctly notes, we have
previously found error not harmless despite a similar pronouncement of the
trial judge. See United States v. Martinez-Romero, 817 F.3d 917 (5th Cir. 2016);
United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). We find those cases
distinguishable. In both, there was no evidence that the district court had
considered the lower, correctly calculated Guidelines range. And in both, the
district court selected a sentence at the bottom of the erroneous range. By
contrast here, the district court was aware of what the applicable Guidelines
range would have been had it sustained Rodriguez-Martinez’s objection, but
nonetheless decided to upward depart from the higher range.
      Most persuasively, the district court here exercised its discretion not to
tether the sentence it imposed to the Sentencing Guidelines. Instead, it used
as a guide the fact that the defendant had previously been convicted of exactly
the same crime and had received a 37-month sentence. Noting how strange it
would be to impose a lesser sentence for this second conviction, the court opted
for the same sentence. That determination would remain unchanged
regardless the correctly calculated Guidelines range.
      On these facts, we find any error committed by the district court in
overruling Rodriguez-Martinez’s crime-of-violence objection harmless, and we
affirm.




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