     Case: 17-10335      Document: 00514320451         Page: 1    Date Filed: 01/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-10335                                FILED
                                  Summary Calendar                       January 24, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL DAGNAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-321-1


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Michael Dagnan appeals the 24-month sentence he received after he
pleaded guilty to theft of government property.               The presentence report
indicated that after Dagnan fraudulently purchased postal stamps, he
advertised them at a discounted rate on the Internet.                He challenges the
district court’s application of U.S.S.G. § 2B1.1(b)(2)(A)(ii) to enhance 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-10335     Document: 00514320451     Page: 2   Date Filed: 01/24/2018


                                  No. 17-10335

sentence based upon its determination that he used mass marketing to commit
the offense.
      The Government argues that any error the district court might have
made in applying § 2B1.1(b)(2)(A)(ii) was harmless. We agree that if there was
error, it was harmless. The district court had both proposed guidelines ranges
before it. Even if the district court does not consider the alternative range
asserted by the appellant to be the correct range, we will consider an error in
the guidelines calculation to be harmless “if the proponent of the sentence
‘convincingly demonstrates both (1) that the district court would have imposed
the same 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.’” United States v.
Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (quoting United States v. Ibarra-
Luna, 628 F.3d 712, 714 (5th Cir. 2010)).
      Here, when overruling Dagnan’s objection to the enhancement, the
district court stated that, “[r]egardless, even if I had granted it, the sentence
is going to be the same, what I think is an appropriate sentence, and it
happened to be a guideline sentence.” Considering this statement, the district
court clearly would have imposed the 24-month term of imprisonment
regardless of the applicable guidelines range.      Accordingly, any error the
district court might have made in applying the two-level enhancement under
§ 2B1.1(b)(2)(A)(ii), with the concomitant two-level increase to offense level 15,
was harmless. See Richardson, 676 F.3d at 511-12; see also United States v.
Gutierrez-Mendez, 752 F.3d 418, 430 (5th Cir. 2014).
      AFFIRMED.




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