                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS                    March 27, 2018
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 17-1190
                                              (D.C. No. 1:16-CR-00258-MSK-1)
 RUDOLPH THOMAS JIMENEZ,                                  (D. Colo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, MURPHY and McHUGH, Circuit Judges.


      Rudolph Jimenez appeals his sentence and argues his prior conviction for

attempted sexual assault does not qualify as a crime of violence under the U.S.

Sentencing Guidelines. Because we agree with the government that any error was

harmless, we affirm.

                                       ***

      Jimenez pleaded guilty to a firearms possession charge under 18 U.S.C.

§ 922(g)(1). At sentencing, the district court considered whether Jimenez’s prior


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Colorado conviction for attempted sexual assault increased his base offense level

under the Guidelines’ crime-of-violence provisions. See USSG §§ 2K2.1(a),

4B1.2(a)(2). The Guidelines define a “crime of violence” to include “a forcible

sex offense,” and the commentary to the Guidelines explains that a “[c]rime of

violence . . . include[s] . . . attempting to commit such offenses.” Id.

§ 4B1.2(a)(2) & comment (n.1). After hearing Jimenez’s arguments, the district

court concluded his conviction for attempted sexual assault fit the guidelines

definition of a crime of violence. The court then sentenced Jimenez to the

minimum of the resulting guidelines range—30 months—but explained that even

if the guidelines range were lower, the court would have varied upward to 30

months.

      Jimenez argues his prior state conviction for attempted sexual assault does

not constitute a crime of violence under the Guidelines. Jimenez concedes sexual

assault qualifies as a crime of violence. He argues instead that Colorado’s

statutory definition of “attempt” is broader than the generic definition of attempt

used in the Guidelines’ crime-of-violence provision.

      We find it unnecessary to address that issue. Even if the district court

made a mistake in calculating the guidelines range, we can affirm if we are

confident the district court would have entered the same sentence under the

correct range. United States v. Snowden, 806 F.3d 1030, 1034 (10th Cir. 2015);

United States v. Sanchez-Leon, 764 F.3d 1248, 1265 (10th Cir. 2014). “The

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Government has the burden of establishing by a preponderance of the evidence

that the district court’s procedural miscues were harmless.” United States v.

Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012).

      Usually, when the guidelines range changes, “we simply do not know what

the district court would have done.” Id. at 1169 (quoting United States v.

Labastida–Segura, 396 F.3d 1140, 1143 (10th Cir. 2005)). And even when the

district court explicitly states it would have issued the same sentence had its

guidelines range calculation been different, we do not find its error was harmless

if the court fails “to explain the reasoning behind” imposing the same sentence

under a different range. See Sanchez-Leon, 764 F.3d at 1265. “[B]oilerplate

remark[s] to avoid reversal” are not enough. Snowden, 806 F.3d at 1036.

      By contrast, when the district court clearly spells out reasons why it would

impose the same sentence even if its range calculation were different, and no one

contends the alternative rationale is impermissible, then any error is harmless.

See id.; Sanchez-Leon, 764 F.3d at 1265.

      Jimenez argues that but for the district court’s decision that his prior

conviction was a crime of violence, his guidelines range would have been 15–21

months. The district court actually found the range was 30–37 months and

applied a sentence of 30 months. Since the district court applied a sentence at the

bottom of the allegedly erroneous range, Jimenez contends the district court

would likely have handed down a lower sentence had it been considering a lower

                                         -3-
range. He also suggests the district court’s stated rationale—namely, its

description of the gravity of Jimenez’s prior offenses—is inconsistent with the

fact the district court sentenced Jimenez at the lower end of the guidelines range.

      But as the government points out, the district court was emphatic it would

have rendered the same sentence even if the guidelines range were lower. After

describing all of Jimenez’s prior convictions, the district court explained:

      If my reasoning is wrong, and this crime is not a crime of violence,
      and the guideline range were lower, I would vary up, for the reasons
      I have specified, to a 30-month detention. And I do so because of the
      seriousness of the offense; the fact that despite how bright and able
      Mr. Jimenez is, he routinely and repeatedly breaks rules; and his
      conduct in this case since the beginning of the case is indicative of
      that.

            So respect for the rule of law requires deterrence, as does
      protecting the public from the many situations in which he has driven
      unlawfully, he has used inappropriate force, and he has
      inappropriately used alcohol without permission.

             It’s therefore my intention to impose a sentence of 30 months
      of incarceration, followed by three years of supervised release.

R., Vol. III at 89–90.

      The court thus “unequivocally stated that it would impose the same

sentence even if 30 months exceeded the correct guideline range.” See Snowden,

806 F.3d at 1031. When the court expresses itself this clearly, there is little

reason to doubt what it would do on remand. And in this case we have all the

more reason to believe the court. Not only had the court rejected a stipulated

sentence of 24 months in the defendant’s Rule 11(c)(1)(C) agreement with the

                                          -4-
government because it was too low, R., Vol. III at 77–78, but the government had

also specifically asked the district court to vary its sentence upward to 30 months

if it found a lower range applicable, R., Vol. III at 71. In light of these clear

indications the court would have rendered the same sentence regardless of how it

resolved the crime-of-violence issue, we hold any error was harmless.

      Jimenez also suggests the district court inappropriately characterized some

of his prior convictions as acts that involved “violence.” See R., Vol. III at

89–90. But in those instances, the district court judge was not conducting a

formal crime-of-violence determination, just describing the convictions as she

saw them. And in any event, Jimenez does not argue—nor do we think he would

be successful in arguing—that this informal characterization was a clearly

erroneous factual determination that affected his sentence.

      We therefore AFFIRM.


                                            ENTERED FOR THE COURT

                                            Timothy M. Tymkovich
                                            Chief Judge




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