     Case: 16-40470          Document: 00514186720         Page: 1     Date Filed: 10/06/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                         No. 16-40470                                    FILED
                                                                                   October 6, 2017
                                                                                    Lyle W. Cayce
                                                                                         Clerk
UNITED STATES OF AMERICA,

                 Plaintiff - Appellee
v.

JOSE SALVADOR ORTIZ-CHAVIRA,

                 Defendant - Appellant



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 5:15-CR-806


Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge. *
PER CURIAM: **
       Jose Salvador Ortiz-Chavira (“Ortiz-Chavira”) challenges the district
court’s application of a 12-level sentencing enhancement based on a previous
burglary conviction under Texas law. There is no dispute that the district court
erred in applying the 12-level enhancement under the Guidelines. But because
that error was harmless, we affirm.




       *   District Judge for the Southern District of Mississippi, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40470
                                           I.
      Ortiz-Chavira pleaded guilty to unlawful reentry into the United States
in violation of 8 U.S.C. § 1326(a) and (b). Before his 2015 deportation, he had
been convicted of burglary of a habitation under Texas Penal Code § 30.02. His
Presentence     Investigation     Report    recommended        a     12-level   sentence
enhancement because that Texas burglary conviction was a “crime of violence”
within the meaning of Sentencing Guidelines § 2L1.2. Ortiz-Chavira objected
to the enhancement.
      The district court overruled the objection and applied the recommended
enhancement, bringing his total offense level to 17. This offense level, paired
with a criminal history category of III, yielded a Guidelines range of 30 to 37
months’ imprisonment. The court sentenced Ortiz-Chavira to 30 months. In
arriving at this decision, the district judge explained that she had considered
the factors under 18 U.S.C. § 3553(a) and, even if the court incorrectly
calculated the Guidelines range, a 30-month sentence was sufficient but not
greater than necessary. Ortiz-Chavira appeals.
                                           II.
      When reviewing a sentencing decision, we first “consider whether the
district court committed a significant procedural error.”              United States v.
Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009). The parties here agree
that the district court erred in applying the 12-level enhancement. 1 But “‘not
every procedural error will require outright reversal,’ and ‘certain “harmless”
errors do not warrant reversal.’” United States v. Garcia-Figueroa, 753 F.3d
179, 192 (5th Cir. 2014) (quoting Delgado-Martinez, 564 F.3d at 752). Under
this harmless-error standard of review, the proponent of the sentence “must



      1 On this record, it is unclear what the correct sentencing range would be. In any
event, Ortiz-Chavira is no longer incarcerated.
                                           2
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                                       No. 16-40470
first demonstrate that the district court would have imposed the same sentence
outside of the appropriate Sentencing Guidelines range for the same reasons,
and second, the proponent must show that the district court was not influenced
by an erroneous Guidelines calculation.” United States v. Castro-Alfonso, 841
F.3d 292, 298 (5th Cir. 2016) (citing United States v. Ibarra-Luna, 628 F.3d
712, 718 (5th Cir. 2010)). 2
                                             III.
       The record is clear that the district court would have imposed the 30-
month sentence regardless of the appropriate Guidelines range and was not
influenced by the erroneous Guidelines calculation. At sentencing, the district
judge, invoking § 3553(a), stated,
       [E]ven if I’m wrong on that [Guidelines] scoring, I still think that
       a 30-month sentence is sufficient, but not greater than necessary.
       And it’s really looking at everything that I’ve already gone over
       with you, the different convictions that you have on your record,
       continued involvement in criminal conduct, and then that
       deportation and then return two weeks after having been
       deported.
              Because of all of that, I think that a 30-month sentence is
       sufficient, but not greater than necessary.
Read plainly, the district judge said she would have imposed the same sentence
regardless of the Guidelines and gave her reasons for doing so. This Court
takes her at her word. And similar language has served as the basis for finding
harmless error in other cases. See, e.g., United States v. Sanchez, 850 F.3d 767,
769–70 (5th Cir. 2017); Castro-Alfonso, 841 F.3d at 298–99; United States v.
Richardson, 713 F.3d 232, 237 (5th Cir. 2013).


       2 Ortiz-Chavira says there are different harmlessness metrics based on whether the
district court considered the correct Guidelines range in determining the length of the
defendant’s sentence. Here, it is unclear whether the district court considered an alternative
Guidelines range in addition to the miscalculated range. In any event, we affirm Ortiz-
Chavira’s sentence under the “more demanding” standard. United States v. Rico-Mejia, 859
F.3d 318, 323 (5th Cir. 2017).
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                                 No. 16-40470
      The Court recognizes that the district judge twice referenced “the low
end” when imposing the 30-month sentence. Ortiz-Chavira, citing United
States v. Martinez-Romero, emphasizes this point to argue that the district
court was influenced by the erroneous Guidelines range. 817 F.3d 917 (5th
Cir. 2016). But Martinez-Romero is distinguishable. There, the sentencing
court imposed a sentence at the bottom of the incorrect range and “expressly
stated that Martinez’s prior conduct was ‘sufficient to justify a sentence within
th[e] range of 46–57 months.’” Id. at 926 (emphasis added). The district court
in this case imposed a sentence within the incorrect range but justified the
precise sentence as opposed to the improper range. Quoting § 3553(a), the
district judge unequivocally stated that 30 months’ imprisonment was
“sufficient, but not greater than necessary” for three reasons. The record
“convince[s] us that the district court had a particular sentence in mind and
would have imposed it, notwithstanding the error made in arriving at the
defendant’s guideline range.” Delgado-Martinez, 564 F.3d at 753 (quoting
United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998)).
                                      IV.
      In sum, we hold the procedural error in this case was harmless and does
not warrant reversal. Ortiz-Chavira’s sentence is
                                                                   AFFIRMED.




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