                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                    U.S. COURT OF APPEALS
                                 No. 11-10502         ELEVENTH CIRCUIT
                             Non-Argument Calendar      AUGUST 17, 2011
                           ________________________        JOHN LEY
                                                            CLERK
                   D.C. Docket No. 1:10-cr-00338-TCB-GGB-1

UNITED STATES OF AMERICA,
                                                           Plaintiff-Appellee,

                                       versus

MANUEL RAFAEL ORTIZ-CRUZ,

                                                           Defendant-Appellant.

                          __________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                 (August 17, 2011)

Before BARKETT, HULL and PRYOR, Circuit Judges

PER CURIAM:

      Manuel Rafael Ortiz-Cruz appeals his 60-month sentence of imprisonment

for illegal reentry into the United States following a previous deportation, in

violation of 8 U.S.C. § 1326(a) and (b)(2). Ortiz-Cruz raises two issues on appeal.
First, Ortiz-Cruz argues that the district court imposed a procedurally

unreasonable sentence by assigning one criminal history point to a prior,

uncounseled misdemeanor conviction for driving under the influence (“DUI”).

Second, Ortiz-Cruz argues that, because the government failed to establish by a

preponderance of the evidence that Ortiz-Cruz was on probation when he

committed the present reentry offense, the district court imposed a procedurally

unreasonable sentence by assigning two additional criminal history points under

U.S.S.G. § 4A1.1(d).

      The government responds that the district court did not misapply the

Sentencing Guidelines by imposing the three contested criminal history points.

The government further contends that, even if the district court did err, any

resulting error was harmless based on the district court’s explicit statement that it

would impose the same sentence of imprisonment absent the three contested

criminal history points.

      It is “unnecessary to resolve a dispute as to which guideline range is

applicable when the lower court makes clear the same sentence would have been

imposed irrespective of the outcome of the dispute.” United States v. De La Torre,

949 F.2d 1121, 1122 (11th Cir. 1992). If “the district court misapplied the

Guidelines, a remand is appropriate unless the reviewing court concludes, on the


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record as a whole, that the error was harmless, i.e., that the error did not affect the

district court’s selection of the sentence imposed.” Williams v. United States, 503

U.S. 193, 203, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992). “Where a district

judge clearly states that he would impose the same sentence, even if he erred in

calculating the guidelines, then any error in the calculation is harmless.” United

States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009).

      We agree with the government that we need not resolve the two issues

raised by Ortiz-Cruz, because the district court made clear that it would have

imposed the sentence of 60 months’ imprisonment regardless of whether the 3

contested criminal history points were counted, and therefore any error was

harmless. Accordingly, we affirm Ortiz-Cruz’s sentence of 60 months’

imprisonment.

      AFFIRMED.




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