     Case: 17-50392    Document: 00514526602       Page: 1   Date Filed: 06/25/2018




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

                                    No. 17-50392
                                                                         Fifth Circuit

                                                                       FILED
                                                                   June 25, 2018

UNITED STATES OF AMERICA,                                         Lyle W. Cayce
                                                                       Clerk
             Plaintiff - Appellee

v.

BENJAMIN VEGA-GARCIA, also known as Carlos Moreno Molina,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Western District of Texas


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:
      Benjamin Vega-Garcia challenges only his sentence following his
conviction on a guilty plea for being found in the United States following a prior
deportation in violation of 8 U.S.C. § 1326. We review de novo the district
court’s interpretation and application of the Guidelines, including its
determination that a defendant’s prior conviction qualifies as a crime of
violence (“COV”) under § 2L1.2. See United States v. Diaz-Corado, 648 F.3d
290, 292 (5th Cir. 2011) (per curiam). We AFFIRM.
      Relevant to the matter in dispute here, the pre-sentence report (“PSR”)
addressed Vega-Garcia’s prior conviction under Florida law for abuse of an
elderly or disabled adult. The PSR originally considered the 2015 Guidelines
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                                 No. 17-50392
then in effect and concluded that the Florida conviction constituted a COV,
warranting a 16-level increase under § 2L1.2(b)(1)(A)(ii), which would yield a
Guidelines range of 57-71 months. Vega-Garcia objected that it was not a COV,
yielding only an 8-level increase under § 2L1.2(b)(1)(C), yielding a Guidelines
range of 24-30 months.     By the time of his sentencing, the then-current
Guidelines were the 2016 Guidelines, which changed the COV analysis. The
district court determined that under the 2016 Guidelines, the proper range
would be 37-46 months and, having overruled Vega-Garcia’s objection,
determined that this was the correct Guidelines range to apply as the 2015
range of 57-71 months would be higher.
      After calculating and considering all of these ranges, the district court
observed that Vega-Garcia had once again entered the United States
unlawfully, despite previously being convicted of a § 1326 violation and serving
a 60-month sentence. Specifically, considering Vega-Garcia’s requested range
of 24-30 months, the district judge stated: “If 60 months didn’t get his
attention, are you telling me 24 to 30 now will?” The district court also stated
several times that Vega-Garcia had numerous uncounted offenses. The district
court thus determined that an above-Guidelines sentence was necessary in
light of the previous sentence not succeeding in dissuading Vega-Garcia from
continuing to enter the country unlawfully.
      The Government does not defend the determination that the Florida
elder abuse statute qualifies as a COV. Instead, it argues harmless error. We
have previously established at least two methods for the Government to show
the district court would have imposed the same sentence. “One is to show that
the district court considered both ranges (the one now found incorrect and the
one now deemed correct) and explained that it would give the same sentence
either way.” United States v. Guzman-Rendon, 864 F.3d 409, 411 (5th Cir.),
cert. denied, 138 S. Ct. 524 (2017). The other method is for the Government to
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                                 No. 17-50392
“convincingly demonstrate 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.” Id. (internal brackets
omitted) (quoting United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir.
2010)).
      We conclude that the Government meets the first test. The district court
considered the different potential Guidelines and would have arrived at the
same sentence under any of them. We agree with Vega-Garcia that it would
be easier for everyone if the district court had expressly used the “magic words”
of Guzman-Rendon. However, in the busy day-to-day world of a district court
sentencing courtroom, we have been loath to demand “magic words” or “robotic
incantations” from district judges. United States v. Fraga, 704 F.3d 432, 439
(5th Cir. 2013). Having considered the sentencing transcript in its totality, it
is clear that the district court concluded that the 72-month sentence was
necessary in light of Vega-Garcia’s recidivism. We pretermit consideration of
the question of whether the Florida conviction was a COV because we conclude
that any error in the assessment of the Florida elder abuse conviction was
harmless.
      AFFIRMED.




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