     Case: 10-40049 Document: 00511351838 Page: 1 Date Filed: 01/14/2011




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

                                                 FILED
                                                                          January 14, 2011
                                     No. 10-40049
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LAZARO JIMENEZ-ESPINOZA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-836-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Lazaro Jimenez-Espinoza (Jimenez) appeals the 50-month sentence
imposed following his guilty plea conviction for illegal reentry after removal in
violation of 8 U.S.C. § 1326. Jimenez argues that the sentence imposed is
procedurally unreasonable because the district court relied on a clearly
erroneous fact and because the district court inadequately explained the
sentence.     He also asserts that the sentence imposed is substantively
unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40049 Document: 00511351838 Page: 2 Date Filed: 01/14/2011

                                  No. 10-40049

      This court reviews sentencing decisions for reasonableness, applying an
abuse-of-discretion standard. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). Appellate courts must first ensure that the district court did
not commit procedural error. Gall v. United States, 552 U.S. 38, 51 (2007);
Cisneros-Gutierrez, 517 F.3d at 764.         The term “procedural error” includes
“failing to calculate (or improperly calculating) the Guidelines range . . . [or]
selecting a sentence based on clearly erroneous facts.” 552 U.S. at 51. Because
we conclude that a procedural error occurred here that was not harmless, we do
not reach the other issues raised.
      Both sides agree that the district court correctly calculated the sentencing
range under the applicable guidelines. Jimenez’s range of 46-57 months was
largely due to a sixteen-level enhancement for a fifteen year old transportation
of illegal aliens conviction. During the short sentencing hearing, Jimenez’s
attorney argued for a below-guidelines sentence because of the age of that
conviction and the fact that “there wasn’t any evidence showing that he was
making any money off of it.” The district court twice stated that “it was found
that he was profiting from this,” despite Jimenez’s attorney’s contrary
statements referencing the pre-sentence report (PSR). The PSR specifically
states that there was insufficient evidence to indicate that Jimenez profited from
the transportation offense.
      Jimenez argues that the district court procedurally erred because it
mistakenly believed that he profited from transporting illegal aliens. We agree
that the district court’s belief is clearly erroneous. The Government argues that
this error was harmless because the guidelines range was correctly calculated
and the profit from the prior crime was irrelevant. “A procedural error during
sentencing is harmless if the error did not affect the district court’s selection of
the sentence imposed.” United States v. Delgado-Martinez, 564 F.3d 750, 753
(5th Cir. 2009)(internal quotations marks and citations omitted). Where, as



                                         2
     Case: 10-40049 Document: 00511351838 Page: 3 Date Filed: 01/14/2011

                                      No. 10-40049

here, the error was preserved and the Government seeks affirmance, it bears the
burden of proving that the error was harmless. Id.
       Gall makes clear that an improper calculation of the range and reliance
on a clearly erroneous fact are separate procedural errors. 552 U.S. at 51; see
also United States v. Guidry, 462 F.3d 373, 376-77 (5th Cir. 2006)1 (finding
procedural error as a result of the district court’s “multiple clearly erroneous
factual determinations”). Thus the correct calculation of the range does not end
the procedural error inquiry.       Because the district court twice mentioned the
profit issue in an otherwise very short colloquy, the Government has not shown
that the error had no effect on the length of the sentence. As a result, the
district court’s procedural error is not harmless. See Delgado-Martinez, 564 F.3d
at 753.    Accordingly, we VACATE Jimenez’s sentence and REMAND for
resentencing.2




       1
        The reasoning of a different section of Guidry was overruled by Gall as explained in
United States v. Warfield, 283 Fed. App’x 234 (5th Cir. 2008)(unpublished).
       2
         In light of this ruling, this court need not address Jimenez’s remaining arguments.
See United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).

                                             3
