     Case: 17-40245      Document: 00514028153         Page: 1    Date Filed: 06/09/2017




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

                                      No. 17-40245                                 FILED
                                                                                June 9, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

              Plaintiff - Appellee

v.

EUGENIO AGUSTIN MUNOZ-CANELLAS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:16-CR-1452-1


Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Defendant-Appellant Eugenio Augustin Munoz-Canellas pleaded guilty
to a one-count indictment charging him with impersonating a federal officer in
violation of 18 U.S.C. § 912. The district court sentenced Munoz-Canellas to
18 months’ imprisonment. Munoz-Canellas appeals, arguing that the district
court erred in calculating the Guidelines range.               Because any error was
harmless and did not affect Munoz-Canellas’s substantial rights, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 17-40245
                                       I
      At rearraignment, the prosecutor proffered the following facts:


            In May, 2016, agents . . . received information that
            starting around July, 2015, the defendant was
            presenting himself as a Border Patrol agent and
            soliciting payments from undocumented aliens in
            exchange for immigration documents. In September
            of 2016 agents were able to introduce a confidential
            informant to the defendant. The defendant advised
            the CI that he was an agent with Border Patrol and
            solicited $7,000 in exchange for helping the CI, who
            had presented him or herself as an alien, obtain legal
            residency. On September 23rd, 2016, the CI met with
            the defendant and delivered a partial payment of
            $2,800 to the defendant along with copies of the CI’s
            Mexican documents. Thereafter agents detained the
            defendant and determined that [the] defendant was,
            in fact, not a Border Patrol agent or otherwise
            employed by the United States.

Munoz-Canellas agreed that those facts were true and correct.
                                      II
      Munoz-Canellas argues that the district court erred in its Guidelines
calculation by applying: (1) a six-level enhancement for loss under U.S.S.G. §
2B1.1(b)(1)(D) because, according to him, the people who paid him to receive
immigration papers were not “victims” within the meaning of the Guidelines;
(2) a two-level enhancement under U.S.S.G. § 2B1.1(b)(3) for theft from the
person of another because, according to him, he never took money from
another’s person; and (3) a two-level enhancement under U.S.S.G.
§ 2B1.1(b)(9)(A) for misrepresenting that the defendant was acting for the
benefit of a government agency because, according to him, he acted only for his
own—not the government’s—benefit.          Munoz-Canellas concedes that the
second two challenges are reviewed for plain error.

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                                   No. 17-40245
      For   preserved    errors,   this   Court   reviews   the   district   court’s
interpretation and application of the Sentencing Guidelines de novo. See
United States v. Medina-Torres, 703 F.3d 770, 773 (5th Cir. 2012) (per curiam).
We review facts supporting the application of an enhancement for clear error.
See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
However, we will not reverse a sentencing error if the error is harmless. United
States v. Sanchez, 850 F.3d 767, 769 (5th Cir. 2017) (per curiam). “An error is
harmless, and does not mandate reversal, if ‘the error did not affect the district
court’s selection of the sentence imposed.’” Id. (citation omitted). “[A]
[G]uidelines calculation error is harmless where the district court . . .
considered the correct [G]uidelines range and . . . stated that it would impose
the same sentence even if that range applied[.]” United States v. Peoples, 667
F. App’x 519, 519–20 (5th Cir. 2016) (per curiam) (quoting United States v.
Richardson, 676 F.3d 491, 511 (5th Cir. 2012)). “To satisfy these requirements,
there must be ‘evidence in the record that will convince [us] that the district
court had a particular sentence in mind and would have imposed it,
notwithstanding the error.’” United States v. Groce, 784 F.3d 291, 296 (5th Cir.
2015) (quoting United States v. Ibarra–Luna, 628 F.3d 712, 718 (5th Cir.
2010)).
      We will reverse on plain-error review only when the defendant
demonstrates: (1) an error (2) that is clear or obvious, and (3) that affected the
defendant’s substantial rights. See United States v. Nava, 762 F.3d 451, 452
(5th Cir. 2014) (citing United States v. Olano, 507 U.S. 725, 732–37 (1993)). If
a defendant does so, this Court has discretion to correct the error if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).


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                                No. 17-40245
      Importantly, under either a harmless-error standard or a plain-error
standard, we will not reverse a sentence if we are convinced that the district
court would have imposed the same sentence, regardless of the error. Compare
Richardson, 676 F.3d at 511 (error harmless where the defendant would have
received the same sentence even without the error), with United States v.
Gonzalez-Perez, 633 F. App’x 293, 294 (5th Cir. 2016) (per curiam) (substantial
rights not affected where the defendant would have received the same sentence
even without the error).
                                      III
      We do not reach Munoz-Canellas’s alleged legal errors because any error
here was harmless and did not affect Munoz-Canellas’s substantial rights.
      In imposing Munoz-Canellas’s sentence, the district court considered the
Guidelines range that Munoz-Canellas claims is correct, zero to six months. In
fact, Munoz-Canellas concedes that the district court considered the correct
range.
      The sentencing transcript further makes clear that the district court
“had a particular sentence in mind and would have imposed it,
notwithstanding the error.” Groce, 784 F.3d at 296 (quoting Ibarra–Luna, 628
F.3d at 718). The district court repeatedly stated that it did not consider a
zero-to-six-month sentence adequate. Indeed, the district court repeatedly
indicated that, for much of the sentencing, it thought that even an 18-month
sentence would have been inadequate. The district court only arrived at an
18-month sentence by taking into account a non-Guidelines factor that was
brought to its attention late at the sentencing hearing—that Munoz-Canellas
had spent six months in solitary confinement.        And after imposing the
sentence, the district court expressly stated that it would have given the same
sentence under any Guidelines range:


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                                 No. 17-40245
            MS. REES [Assistant United States Attorney]: But
            would your Honor in the event of some caution if
            maybe you could be finding that under 3553(a), you
            would impose a sentence of 18 months even if the
            guideline calculation is incorrect? Is it essentially the
            sentence that you would impose under 3553(a) for
            promoting respect for the law, safety for the
            community and those sorts of things?

            THE COURT: Yeah and considering that he spent six
            months in solitary already. Otherwise, I would have
            actually varied upward.

      Accordingly, based on the district court’s explicit agreement that it would
have given Munoz-Canellas the same sentence regardless of the Guidelines
range, as well as the remainder of the sentencing transcript, which confirms
the district court’s statements, we hold that any Guidelines error was harmless
and did not affect Munoz-Canellas’s substantial rights.
      We AFFIRM.




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