     Case: 14-41272      Document: 00513265369         Page: 1    Date Filed: 11/10/2015




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

                                                                                    FILED
                                      No. 14-41272                          November 10, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee,
v.

JESUS ALEJANDRO GALLEGOS-CARMONA,

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                            Southern District of Texas
                            U.S.D.C. No. 5:14-cr-456-1


Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant pled guilty as charged in the indictment to illegal
reentry. The district court imposed a sentence of 57 months’ imprisonment.
Defendant-Appellant appealed. We affirm.
                          I. Facts & Procedural History
       Defendant-Appellant Jesus Alejandro Gallegos-Carmona (“Gallegos-
Carmona”) pled guilty without a written plea agreement to illegal reentry.
Pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), the probation officer recommended


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-41272       Document: 00513265369          Page: 2     Date Filed: 11/10/2015



                                       No. 14-41272
imposing a 16-level crime of violence (“COV”) enhancement 1 because Gallegos-
Carmona had previously been deported subsequent to a 2011 Texas felony
conviction for assault-family violence-impeding breath. 2 See Tex. Penal Code
Ann. § 22.01(b)(2)(B) (West 2013). After applying the COV enhancement,
Gallegos-Carmona’s total offense level of 21, coupled with a criminal history
category of IV, resulted in a sentencing guidelines range of 57 to 71 months’
imprisonment.
       Gallegos-Carmona objected to the 16-level enhancement, arguing that
his Texas conviction for assault-family violence-impeding breath was not a
COV under § 2L1.2(b)(1)(A)(ii). Gallegos-Carmona renewed his objection at
sentencing. The district court overruled Gallegos-Carmona’s objection and
found that the impeding breath subsection of the Texas assault statute
included as an element of the offense the use, attempted use, or threatened use
of physical force against the person of another and, therefore, qualified as a
COV.
       The district court then sentenced Gallegos-Carmona to a term of 57
months’ imprisonment with a 3-year term of supervised release and a $100


       1  Section 2L1.2 of the U.S. Sentencing Guidelines provides that the base offense level
for illegal reentry shall be increased by 16 levels if the defendant was previously deported
subsequent to a conviction for a COV. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to
§ 2L1.2 define a COV as either one of several enumerated offenses or “any other offense under
federal, state, or local law that has as an element the use, attempted use, or threatened use
of physical force against the person of another.” Id. § 2L1.2, cmt. (n.1(B)(iii)); see United
States v. Garcia-Perez, 779 F.3d 278, 282 (5th Cir. 2015). It is undisputed that the offense of
assault-family violence-impeding breath is not an enumerated offense under the Guidelines.
        2 The relevant Texas assault statute provides, in pertinent part, that a person commits

assault if he “intentionally, knowingly, or recklessly causes bodily injury to another,
including the person's spouse[.]” See Tex. Penal Code Ann. § 22.01(a)(1)-(3) (West 2013). An
assault, which is generally a Class A misdemeanor, becomes a third-degree felony if it is
committed against a family member or romantic partner, and if “the offense is committed by
intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the
blood of the person by applying pressure to the person’s throat or neck or by blocking the
person’s nose or mouth.” Id. at § 22.01(b)(2)(B).

                                              2
    Case: 14-41272     Document: 00513265369      Page: 3   Date Filed: 11/10/2015



                                  No. 14-41272
special assessment. In sentencing Gallegos-Carmona, the district court noted
for the record that, even if it was incorrect in determining that Gallegos-
Carmona’s previous conviction qualified as a COV, it would nevertheless have
imposed the same sentence based upon its consideration of the factors under
U.S.S.G. § 3553(a) and Gallegos-Carmona’s prior criminal history. Gallegos-
Carmona filed this appeal.
                           II. Standard of Review
      We conduct a two-step review of the district court’s sentencing decision.
United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014). “First, we must
‘ensure that the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, [or] failing to consider the § 3553(a)
factors.’” Id. (citations omitted). We “may affirm the sentence in spite of a
procedural error if that error is harmless—that is, if ‘the error did not affect
the district court’s selection of the sentence imposed.’” Id. at 601 (citations
omitted). “Second, if the sentence is procedurally sound or if the procedural
error is harmless, [we] ‘consider[] the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.’” Id. at 598 (citation
omitted). In our application of this two-step review, we review “the sentencing
court’s interpretation or application of the Sentencing Guidelines de novo, and
its factual findings for clear error.” Id. at 598–99.
      “We have held that a guidelines calculation error is harmless where the
district court has considered the correct guidelines range and has stated that
it would impose the same sentence even if that range applied.” United States
v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (citations omitted). “Even if a
court did not consider the correct range, an error in the guidelines calculation
can still be considered harmless if the proponent of the sentence ‘convincingly
demonstrates both (1) that the district court would have imposed the same
                                        3
    Case: 14-41272    Document: 00513265369      Page: 4   Date Filed: 11/10/2015



                                 No. 14-41272
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.’” Id. (quoting United States v.
Ibarra–Luna, 628 F.3d 712, 714 (5th Cir. 2010)). “This is a heavy burden, and
one that requires the proponent to point to evidence in the record that will
convince [the appellate court] that the district court had a particular sentence
in mind and would have imposed it, notwithstanding the error.” Id. (internal
quotation marks and citation omitted).
                               III. Discussion
      On appeal, Gallegos-Carmona argues that the district court erred by
imposing the 16-level COV enhancement based on his prior Texas conviction
for assault-family violence-impeding breath. Gallegos-Carmona contends that
his Texas conviction does not meet the definition of a COV because the offense
does not include as an element the use, attempted use, or threatened use of
physical force against the person of another. He maintains that the offense
may be committed without the use of destructive or violent force and that the
offense’s alternative mens rea requirement of recklessness does not rise to the
level of intentional use of physical force. Gallegos-Carmona also asserts that
the district court’s error was not harmless because, without the 16-level
enhancement, his Guidelines range would have been a maximum of 24 to 30
months, which is significantly less than his 57-month term of imprisonment.
      The Government argues that this court need not determine whether the
16-level enhancement was erroneous because the district court emphatically
ruled that it would impose the same sentence irrespective of any putative error
in the 16-level enhancement under § 2L1.2. We agree.
      The district court acknowledged at sentencing that Gallegos-Carmona
has “mental health issues,” a history of using drugs and drinking alcohol, and
a “very serious,” “long,” and “dangerous criminal record” involving “dangerous,
disturbing conduct” in the United States. It pointed out that because Gallegos-
                                       4
     Case: 14-41272        Document: 00513265369          Page: 5     Date Filed: 11/10/2015



                                        No. 14-41272
Carmona grew up in the United States, it believed the chances of his returning
or attempting to return were “very high.”                  It went on to state that, in
determining the appropriate sentence, it considered the § 3553(a) factors,
including, protecting the community, deterring Gallegos-Carmona from
coming back, and promoting respect for the laws of the United States. After
imposing the 57-month term of imprisonment, the district court further
explained:
       And I am noting for the record, also, that even if I am wrong on
       that plus 16, that your record justifies, under 3553(a), a 57-month
       custody sentence. So even if I’m wrong on that plus 16 or it being
       an aggravated felony, crime of violence, even if the Fifth Circuit
       thinks that that’s not correct, under the state of our law, I, in
       considering 3553(a), I’ve considered those, and I think that a 57-
       month sentence is sufficient, but not greater than necessary to
       meet the goals of 3553(a), because of everything that we’ve already
       discussed today, the length of your record, the dangerousness of
       the conduct that you’re involved in when you’re here. And so that’s
       why I’m imposing that sentence. 3

       Considering the aforementioned detailed statements of the district court
at the sentencing hearing, it is clear that it would have imposed the 57-month
term of imprisonment regardless of the applicable Guidelines range.
Accordingly, we hold that any putative error made by the district court in
determining that Gallegos-Carmona’s prior conviction qualified as a COV
under § 2L1.2, warranting the 16-level sentencing enhancement, was


       3  Gallegos-Carmona’s criminal history includes convictions for driving while
intoxicated (twice), criminal trespass, resisting arrest, possession of marijuana, giving a false
name to a police officer, and assaulting a family member by applying pressure to her throat.
When Gallegos-Carmona was arrested for criminal trespass, he had been fighting, and he
was so belligerent that he had to be restrained with leg irons and handcuffs in the police car.
After one of Gallegos-Carmona’s arrests for driving while intoxicated, he made suicidal
threats at the jail, attempted to swallow a paper clip, and ripped his earrings out, tearing his
earlobes. Gallegos-Carmona’s assault conviction arose from an incident in which he was also
charged with aggravated sexual assault; that charge was abandoned when he pled guilty to
the assault charge.
                                               5
       Case: 14-41272   Document: 00513265369   Page: 6   Date Filed: 11/10/2015



                                 No. 14-41272
harmless. See Richardson, 676 F.3d at 511 (citing Ibarra–Luna, 628 F.3d at
714); see also United States v. Gutierrez-Mendez, 752 F.3d 418, 430 (5th Cir.
2014) (finding any error harmless where the district court stated it would
impose the same sentence even if it were mistaken in its calculation of the
Guidelines range). Additionally, in light of Gallegos-Carmona’s dangerous and
disturbing criminal record, in conjunction with the other reasons cited by the
district court for imposing the sentence, we do not find the 57-month term of
imprisonment to be substantively unreasonable. See Robinson, 741 F.3d at
598.
                                IV. Conclusion
        For the foregoing reasons, the sentence of Defendant-Appellant Jesus
Alejandro Gallegos-Carmona is AFFIRMED in all respects.




                                       6
