     Case: 16-11204      Document: 00514031763         Page: 1    Date Filed: 06/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                    No. 16-11204                                   FILED
                                  Summary Calendar                              June 13, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESUS JIMENEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-31-1


Before KING, DENNIS, and COSTA, Circuit Judes.
PER CURIAM: *
       Jesus Jimenez appeals his sentence of 300 months of imprisonment and
five years of supervised release following his guilty-plea conviction for
possessing     with    the    intent    to   distribute    50    grams     or      more          of
methamphetamine.          Jimenez asserts that the district court: committed
reversible factual and legal error in applying the U.S.S.G. § 2D1.1(b)(5)
methamphetamine importation enhancement; erred in failing to rule on his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11204

U.S.S.G. § 1B1.8 objection that information obtained as part of a cooperation
agreement was improperly used to support the methamphetamine importation
enhancement; and erred in applying the enhancement without evidence that
he knew the methamphetamine was imported. 1
       We review a district court’s interpretation of the Sentencing Guidelines
de novo and its factual findings for clear error. United States v. Nieto, 721 F.3d
357, 371 (5th Cir. 2013). An error in guidelines calculations is reviewed for
harmless error, but it “is harmless only if it did not affect the selection of the
sentence imposed.” United States v. Lopez-Urbina, 434 F.3d 750, 765 (5th Cir.
2005) (internal quotation marks and citation omitted). “‘The Government, as
the party seeking to uphold the sentence, bears the burden of demonstrating
that the error was harmless.’” Id.
       Jimenez’s appellate arguments essentially challenge the propriety of the
district court’s application of the § 2D1.1(b)(5) enhancement, which provides
for a two level increase of the offense level if the offense involved the
importation of methamphetamine and the defendant is not subject to a
mitigating role reduction. See § 2D1.1(b)(5). However, as the Government
correctly asserts, even if the district court had sustained Jimenez’s objection to
this enhancement and reduced his offense level from 41 to 39, given his
criminal history category of IV, the advisory guidelines range would
nevertheless have remained at 360 to 480 months of imprisonment.                       See
U.S.S.G. Ch. 5, Pt. A, Sentencing Table. Accordingly, any error in applying the
§ 2D1.1(b)(5) methamphetamine importation enhancement was harmless. See
United States v. Chon, 713 F.3d 812, 824 n.7 (5th Cir. 2013) (concluding that a
sentencing guidelines calculation error is harmless if it does not affect the



       1Jimenez acknowledges that this final issue is foreclosed by United States v. Foulks,
747 F.3d 914 (5th Cir. 2014), but he raises the issue to preserve it for further review.


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                                 No. 16-11204

guidelines range); United States v. Casas, 591 F. App’x 258, 259 (5th Cir. 2015)
(same).
      Because the Government has established that the district court’s
application of the § 2D1.1(b)(5) methamphetamine importation enhancement
was harmless, we need not consider Jimenez’s challenge to the propriety of
that enhancement. See United States v. Rojas, 541 F. App’x 449, 451-52 (5th
Cir. 2013). The judgment of the district court is AFFIRMED.




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