     Case: 11-50572     Document: 00511871431         Page: 1     Date Filed: 05/30/2012




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

                                                                            FILED
                                                                           May 30, 2012
                                     No. 11-50572
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

NATHAN ARZOLA-ESPINOZA, also known as Nathan Espinoza Arzola,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-817-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        After Defendant-Appellant Nathan Arzola-Espinoza pleaded guilty to
importing more than 50 kilograms of marijuana into this country from Mexico,
the district court sentenced him above the guidelines range of imprisonment to
52 months of imprisonment and three years of supervised release. Arzola-
Espinoza contends that the district court erred in calculating his guidelines
range of imprisonment when it applied a two-level enhancement pursuant to
U.S.S.G. § 3B1.4 based on its finding that he used minors during the commission

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50572   Document: 00511871431     Page: 2   Date Filed: 05/30/2012

                                 No. 11-50572

of his offense. He claims that his children were merely present and that alone
their presence was insufficient to support the enhancement. The government
counters that any error was harmless.
      We have held that a guidelines calculation error may be harmless even
when the district court has not considered the correct guidelines range. See
United States v. Ibarra-Luna, 628 F.3d 712, 716-18 (5th Cir. 2010). First, “the
[g]overnment must convincingly demonstrate that the district court would have
imposed a sentence outside the correct Guidelines range for the same reasons it
gave for imposing a sentence outside the miscalculated Guidelines range.” Id.
at 718-19. Second, the government “must show that the . . . sentence the district
court imposed was not influenced in any way by the erroneous Guidelines
calculation.” Id. at 719.
      The government has met this burden in the instant case. The district
court would have found that without the enhancement the guidelines range was
inadequate for the same reasons that it found that with the enhancement the
higher guidelines range was inadequate. Further, it is apparent from the record
that any erroneous guidelines computation did not influence the sentence.
Immediately after overruling Arzola-Espinoza’s objection to the enhancement
during the sentencing hearing, the district court explained to counsel that the
sentence “will be the sentence with or without the guideline whichever I fashion
in this case.” The district court explained that (1) it was imposing the non-
guideline sentence because the guidelines calculations accounted for only one of
Arzola-Espinoza’s imported loads, and (2) statements given by Arzola-Espinoza
and his wife corroborated that the instant offense involved his tenth load. As
there is evidence in the record that the district court would have imposed “the
very same sentence” regardless whether the two-level enhancement was applied
in error, any error was harmless. Ibarra-Luna, 628 F.3d at 719.
      AFFIRMED.



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