     Case: 15-41090      Document: 00513560607         Page: 1    Date Filed: 06/22/2016




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


                                    No. 15-41090                            FILED
                                  Summary Calendar
                                                                        June 22, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

VICTOR MANUEL ANDINO-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-263-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Victor Manuel-Andino Hernandez was convicted, pursuant to his guilty
plea, of being illegally present in the United States after removal. The district
court enhanced his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a
determination that his Florida conviction of aggravated battery was a crime of
violence (COV). Andino-Hernandez was sentenced within the guidelines range
to a 50-month term of imprisonment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41090    Document: 00513560607     Page: 2   Date Filed: 06/22/2016


                                 No. 15-41090

      On appeal, Andino-Hernandez contends that his Florida aggravated
battery conviction was not a COV and that the district court therefore erred in
applying the 16-level enhancement.         The Government argues that the
enhancement was properly applied because Andino-Hernandez’s aggravated
battery offense has as an element the use, attempted use, or threatened use of
physical force. As discussed below, we need not determine whether the district
court erred in applying the enhancement because we agree with the
Government’s contention that the error, if any, in applying the enhancement
was harmless. See United States v. Richardson, 676 F.3d 491, 511-12 (5th Cir.
2012).
      When a significant procedural error occurs at sentencing, remand for
resentencing is required unless the error was harmless.       United States v.
Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009). The district court’s
remarks at sentencing convincingly demonstrate that it had a particular
sentence in mind, that it would have imposed the same 50-month sentence had
it not made the alleged error with respect to imposition of the enhancement,
and that it would have imposed that sentence for the same reasons. See United
States v. Ibarra-Luna, 628 F.3d 712, 714, 718 (5th Cir. 2010); see also
Richardson, 713 F.3d at 237 (“[A]ny error in calculating the total offense level
was harmless, given the district court’s clear statements that it would have
imposed the same sentence regardless of the correctness in the calculation.”).
Because the Government has sufficiently demonstrated that any error in
applying the enhancement was harmless, the district court’s judgment is
AFFIRMED.




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