     Case: 16-40430      Document: 00514273334         Page: 1    Date Filed: 12/14/2017




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

                                      No. 16-40430
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 14, 2017

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

ONAN ALEMAN-RODRIGUEZ, also known as Juan Jose Mejia-Ramirez,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-966-1


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Onan Aleman-Rodriguez appeals the sentence imposed following his
guilty plea to illegal reentry after being deported from the United States. He
argues that the district court erred in assessing a 12-point enhancement based
on a prior conviction for statutory burglary.                  Although the 12-point
enhancement was erroneous, the error was harmless because the district court
would have imposed the same sentence regardless. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40430     Document: 00514273334    Page: 2   Date Filed: 12/14/2017



                                 No. 16-40430
                     FACTS AND PROCEDURAL HISTORY
      Onan Aleman-Rodriguez, a citizen of Honduras, first illegally entered
the United States in 1995. Beginning in 1995, Aleman has used 25 aliases,
five different dates of birth, and two different social security numbers to avoid
detection. He has never had legal status here. While in the United States,
Aleman has developed a lengthy criminal history with offenses ranging from
driving while intoxicated to statutory burglary. In 2001, he pled guilty to
statutory burglary in Virginia, which the Government argues may serve as a
predicate crime-of-violence offense and warrants a 12-point sentencing
enhancement.
      The United States deported Aleman in 2009. In 2010, Aleman was
arrested and then pled guilty in a United States District Court in Virginia to
illegal reentry. He was sentenced to 46 months’ imprisonment and three years
of supervised release. Aleman was again deported in 2013 when his supervised
release commenced. A condition of his supervised release was that he not re-
enter the United States illegally. In 2015, Aleman again illegally entered the
United States and was arrested. He pled guilty in the United States District
Court for the Southern District of Texas to illegal reentry.
      In calculating his Guidelines range, the district court held that his 2001
statutory burglary conviction in Virginia was a crime of violence and applied a
12-point enhancement. Aleman objected, arguing that his statutory burglary
conviction could not serve as a predicate crime-of-violence offense because
Virginia’s burglary statute is indivisible and broader than generic burglary.
The district court overruled the objection, stating that “[o]f course it’s a
divisible statute and if it’s not, let the Circuit Court say that[.]” Aleman’s
Guidelines range was 30-37 months’ imprisonment. He received a sentence of
36 months’ imprisonment for illegal reentry and four months’ imprisonment
for violating the terms of his supervised release. Aleman timely appealed.
                                       2
    Case: 16-40430    Document: 00514273334       Page: 3   Date Filed: 12/14/2017



                                   No. 16-40430
                                  DISCUSSION
      This court uses a bifurcated process for reviewing a sentence. Gall v.
United States, 552 U.S. 38, 51 (2007). First, we ensure that the district court
did not commit any significant procedural error, such as improperly calculating
the Guidelines range or failing to consider the Section 3553(a) factors. Id. We
review de novo the interpretation and application of the Guidelines and apply
a clear-error standard on factual findings.        United States v. Gutierrez-
Hernandez, 581 F.3d 251, 254 (5th Cir. 2009).           Second, we review the
substantive reasonableness of the sentence for any abuse of discretion. Id.
      Aleman’s sole issue is that his 2001 statutory burglary conviction in
Virginia does not qualify as a crime of violence under Section 2L1.2(b)(1)(A)(ii)
of the 2014 version of the Sentencing Guidelines because the Virginia burglary
statute is indivisible.     After the briefing here was completed, we held in
another appeal that statutory burglary in Virginia does not qualify as a crime
of violence. United States v. Reyes-Ochoa, 861 F.3d 582, 588–89 (5th Cir. 2017).
Thus, using the crime-of-violence enhancement here was error. We examine
whether the error was harmless.
      Harmless error can be shown in two ways, with the first being “to show
that the district court considered both ranges (the one now found incorrect and
the one now deemed correct) and explained that it would give the same
sentence either way.” United States v. Guzman-Rendon, 864 F.3d 409, 411 (5th
Cir. 2017).   The second method is for the Government to demonstrate
convincingly “(1) that the district court would have imposed the same sentence
had it not made the error, and (2) that it would have done so for the same
reasons it gave at the prior sentencing.” United States v. Ibarra-Luna, 628 F.3d
712, 714 (5th Cir. 2010).
      An example of the kind of clarity required from a district judge for us to
find harmlessness involved a defendant who pled guilty to illegal reentry, and
                                        3
    Case: 16-40430       Document: 00514273334   Page: 4   Date Filed: 12/14/2017



                                  No. 16-40430
the district court assessed a 16-point crime-of-violence enhancement for a prior
conviction of attempted manslaughter. United States v. Bonilla, 524 F.3d 647,
656 (5th Cir. 2008). The defendant’s Guidelines range was 41-51 months; he
received a sentence of 41 months’ imprisonment. Id. at 650, 657. At the
sentencing hearing, the court stated that “I believe that I have calculated the
guidelines correctly, but even if I am wrong about the guidelines, this is the
sentence that I would impose in any event.” Id. at 656. The court made no
comment on the alternate Guidelines ranges that would apply with or without
the crime-of-violence enhancement. Id. On appeal, this court held that the
crime-of-violence enhancement was improper, but the error was harmless
because the district court “imposed a reasonable alternative non-guideline
sentence.” Id. at 650.
      The district court here did consider the range that subsequent caselaw
shows is the correct one. Yet, similar to statements made in Bonilla, the court
stated that even if it had made “any error with regards to the determination
as to what the appropriate sentence should be under guideline determinations,
. . . the Court would find that under the [Section] 3553(a) factors that this
would be the appropriate sentence even if it had to be through a variance.” The
district court further stated that “if I’m wrong under the [Section] 3553(a)
factors, this is the sentence that I would impose. And I want to make that
clear.” The 12-point enhancement was not controlling.
      AFFIRMED.




                                        4
