     Case: 10-10742     Document: 00511530628         Page: 1     Date Filed: 07/06/2011




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

                                                                            FILED
                                                                            July 6, 2011
                                     No. 10-10742
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANIEL SANTILLAN-HERNANDEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-30-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Daniel Santillan-Hernandez appeals the 90-month term of imprisonment
imposed after he pleaded guilty of being found in the United States without
permission, following removal. See 8 U.S.C. § 1326(a) & (b). He contends that
the district court plainly erred by enhancing his sentence pursuant to United
States Sentencing Guideline § 2L1.2(b)(1)(C) based on a determination that his
1989 California state court conviction of selling or transporting marijuana was
an aggravated felony.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10742    Document: 00511530628      Page: 2    Date Filed: 07/06/2011

                                  No. 10-10742

      We agree with Santillan-Hernandez that the district court plainly erred
in finding based on the presentence report that his prior conviction under
California Health & Safety Code § 11360(a) was an aggravated felony. See
United States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010). Nevertheless,
we also agree with the Government that Santillan-Hernandez has not shown a
reasonable probability that his sentence would have been lower absent the
district court’s consideration of the incorrect advisory guidelines range. See
United States v. Dickson, 632 F.3d 186, 191 (5th Cir. 2011), petition for cert.
filed, (Apr. 27, 2011) (No. 10-10278); United States v. Davis, 602 F.3d 643, 648-49
(5th Cir. 2010).
      In the instant case, the district court determined that a sentence within
the incorrectly calculated guideline range was inappropriate in light of
Santillan-Hernandez’s serious criminal history and potential for recidivism. For
those same reasons a sentence within the lower correctly calculated range would
have been insufficient.     Moreover, the district court’s statements, clearly
explaining its methodology for arriving at a reasonable sentence, indicate that
the incorrectly calculated range did not influence the sentence imposed.
Santillan-Hernandez has not demonstrated a reasonable probability that, but
for the district court’s errors, he would have received a shorter sentence. See
United States v. Blocker, 612 F.3d 413, 416 (5th Cir.), cert. denied, 131 S. Ct. 623
(2010).
      AFFIRMED.




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