     Case: 17-50210      Document: 00514592993         Page: 1    Date Filed: 08/09/2018




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

                                    No. 17-50210                         FILED
                                  Summary Calendar                  August 9, 2018
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEJANDRO GALLEGOS-LIRA, also known as Javier Gonzales, also known
as Hector Manuel Gonzales-Huerta, also known as Jose Luis Alvarez-
Mendoza, also known as Alejandro Gallegos Lira, also known as Alejandro
Gallegos, also known as Alejandro Lira Gallegos, also known as Alejandro Lira-
Gallegos, also known as Alejandro G-L,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CR-836-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Alejandro Gallegos-Lira appeals the 77-month prison sentence he
received following his conviction for illegal reentry. In calculating his total
offense level, the district court assessed a 16-level enhancement on the grounds



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50210

that his prior Texas conviction for burglary was a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015).       While the appeal was pending, we
overruled our prior precedent and held that the Texas burglary statute is not
divisible and is broader than the generic definition of burglary. United States
v. Herrold, 883 F.3d 517, 529, 541 (5th Cir. 2018) (en banc), petitions for cert.
filed (Apr. 18, 2018) (No. 17-1445) and (May 21, 2018) (No. 17-9127). We have
applied this holding to Section 2L1.2(b)(1)(A)(ii) (2015), concluding that Texas
burglary is no longer a crime of violence for the purposes of the 16-level
enhancement. United States v. Godoy, 890 F.3d 531, 536 (5th Cir. 2018).
      The Government acknowledges the change in the controlling authority
but nonetheless urges us to affirm the judgment on the grounds that the error
in applying the enhancement was harmless. Where, as here, the district court
did not explicitly consider the correct guidelines range, the Government can
show harmless error if it can “compellingly prove that 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 if it can
“demonstrate that the ‘sentence the district court imposed was not influenced
in any way by the erroneous Guidelines calculation.’”           United States v.
Martinez-Romero, 817 F.3d 917, 924 (5th Cir. 2016) (citation omitted).
      Deciding to select a sentence at the bottom of an incorrectly calculated
guidelines range is evidence that the erroneous guidelines range influenced
the sentence. See id. at 925-26. Moreover, we have expressed skepticism that
the Government can show that an incorrect guidelines calculation played no
role in a district court’s selection of a particular sentence where the court
makes an “explicit attempt to justify the precise [guidelines] range” that turns
out to be incorrect. Id. at 926 (explaining that “it is a stretch to say that the
court’s choice of the same parameters as the improperly calculated guidelines



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                                  No. 17-50210

range . . . was mere serendipity”). The district court did both of those things
here. It chose a sentence at the low end of the incorrectly calculated, 77- to 96-
month guidelines range, and it explicitly determined that in light of Gallegos-
Lira’s criminal history and the other Section 3553(a) factors, this precise
guidelines range “hit the nail on the head.” To be sure, the district court
“expressed a multitude of reasons for imposing a sentence above the properly
calculated range,” but its discussion does not establish that its choice of “the
exact low and high ends of the improper range was independent of the
erroneous calculation that called the court’s attention to that range in the first
instance.” Id.
      The Government has not met its “heavy burden” to demonstrate that the
incorrect guidelines range did not influence the district court’s selection of the
sentence.   Id.   Accordingly, the judgment is VACATED and the case is
REMANDED for resentencing.         On remand, the district court should also
consider whether the judgment should continue to reflect that Gallegos-Lira is
subject to a sentence under subsection (b)(2) of Section 1326 in light of Sessions
v. Dimaya, 138 S. Ct. 1204, 1210, 1223 (2018) and Godoy, 890 F.3d at 541–42.




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