United States v. Santiago Sanchez

Fifth Circuit

United States v. Santiago Sanchez

850 F.3d 767, 2017 WL 945482, 2017 U.S. App. LEXIS 4189

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 9, 2017

Docket15-51217

StatusPublished

Cited by18 cases

This text of 850 F.3d 767 (United States v. Santiago Sanchez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Santiago Sanchez, 850 F.3d 767, 2017 WL 945482, 2017 U.S. App. LEXIS 4189 (5th Cir. 2017).

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Opinion

PER CURIAM:

Appellant Santiago Sanchez pled guilty to aiding and abetting a bank robbery and received a six-point enhancement for otherwise using a firearm during commission of the robbery. On appeal, he challenges this six-point enhancement. We hold that any alleged error is harmless. The judgment is AFFIRMED.

*769 BACKGROUND

Sanchez pled guilty to' aiding and abetting a bank robbery in violation of 18 U.S.C. § 2113(d) and 18 U.S.C. § 2. The Presentence Report (PSR) established a base offense level of 20. It also applied various other enhancements for conduct specific to this offense, including a six-level enhancement under U.S.S.G. § 2B3.1(b)(2)(B) for “otherwise using” a firearm during commission of the robbery. Sanchez objected to this six-level enhancement. The district court overruled Sanchez’s objection and determined that a six-level enhancement was proper under the Guidelines because there was testimony that the defendants entered the building and announced that they had a gun.

Sanchez’s total offense level was set at 31. Given his criminal history category of III, the resulting advisory Guidelines range was 135-168 months of imprisonment. The district court adopted the PSR and sentenced Sanchez to 135 months followed by supervised release for five years. The court explicitly stated that even if it had erred in applying the six-level enhancement, it would have imposed the same sentence. Sanchez timely appealed.

DISCUSSION

On appeal, Sanchez asserts that the district court erred by applying a six-point enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for using a firearm during the robbery. Sanchez contends that a four-level or five-level enhancement was more appropriate because his conduct was more consistent with “brandishing” the firearm than “otherwise using” it. U.S.S.G. § 2B3.1(b)(2)(C)-(D).

When a defendant objects to a sentencing enhancement, this court “reviews the district court’s interpretation and application of the Guidelines de novo and its factual findings for clear error.” United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010). The factual statements in a PSR are “presumed reliable and may be adopted by the district court ‘without further inquir/ if the defendant fails to demonstrate by competent rebuttal evidence that the information is ‘materially untrue, inaccurate, or unreliable.’ ” United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal citation omitted).

Assuming arguendo that the district court procedurally erred, any error was harmless. Not every procedural error requires reversal. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). An error is harmless, and does not mandate reversal, if “the error did not affect the district court’s selection of the sentence imposed.” Id. Even when a district court does not consider the correct guidelines range, an error is harmless if the district court would have imposed the same sentence for the same reasons, regardless of an erroneous Guidelines calculation. United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). When it is clear that the “court wanted to ‘moot’ the defendant’s objection — by ordering a sentence that effectively grants counsel’s objection — the appeal of the ‘sentencing error’ makes no sense.” United States v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017).

In imposing a 135-month sentence, the district court stated “to the extent that I erred in the application of the enhancement of plus six, the sentence would still be the same.” This court has held that similar statements during sentencing provide sufficient basis to conclude that any potential error resulting from an improperly calculated Guidelines range is harmless. United States v. Castro-Alfonso, 841 F.3d 292, 298-99 (5th Cir. 2016); United States v. Richardson, 713 F.3d 232, 237 *770 (5th Cir. 2013). We do not require the district court to recite “magic words.” Shepherd, 848 F.3d at 427. The district court made it abundantly clear that it would have imposed this sentence, regardless of whether it improperly calculated the appropriate Guidelines range by including the six-level enhancement.

CONCLUSION

The appellant’s sentence is AFFIRMED.

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PER CURIAM:

Appellant Santiago Sanchez pled guilty to aiding and abetting a bank robbery and received a six-point enhancement for otherwise using a firearm during commission of the robbery. On appeal, he challenges this six-point enhancement. We hold that any alleged error is harmless. The judgment is AFFIRMED.

*769 BACKGROUND

Sanchez pled guilty to' aiding and abetting a bank robbery in violation of 18 U.S.C. § 2113(d) and 18 U.S.C. § 2. The Presentence Report (PSR) established a base offense level of 20. It also applied various other enhancements for conduct specific to this offense, including a six-level enhancement under U.S.S.G. § 2B3.1(b)(2)(B) for “otherwise using” a firearm during commission of the robbery. Sanchez objected to this six-level enhancement. The district court overruled Sanchez’s objection and determined that a six-level enhancement was proper under the Guidelines because there was testimony that the defendants entered the building and announced that they had a gun.

Sanchez’s total offense level was set at 31. Given his criminal history category of III, the resulting advisory Guidelines range was 135-168 months of imprisonment. The district court adopted the PSR and sentenced Sanchez to 135 months followed by supervised release for five years. The court explicitly stated that even if it had erred in applying the six-level enhancement, it would have imposed the same sentence. Sanchez timely appealed.

DISCUSSION

On appeal, Sanchez asserts that the district court erred by applying a six-point enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for using a firearm during the robbery. Sanchez contends that a four-level or five-level enhancement was more appropriate because his conduct was more consistent with “brandishing” the firearm than “otherwise using” it. U.S.S.G. § 2B3.1(b)(2)(C)-(D).

When a defendant objects to a sentencing enhancement, this court “reviews the district court’s interpretation and application of the Guidelines de novo and its factual findings for clear error.” United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010). The factual statements in a PSR are “presumed reliable and may be adopted by the district court ‘without further inquir/ if the defendant fails to demonstrate by competent rebuttal evidence that the information is ‘materially untrue, inaccurate, or unreliable.’ ” United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002) (internal citation omitted).

Assuming arguendo that the district court procedurally erred, any error was harmless. Not every procedural error requires reversal. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). An error is harmless, and does not mandate reversal, if “the error did not affect the district court’s selection of the sentence imposed.” Id. Even when a district court does not consider the correct guidelines range, an error is harmless if the district court would have imposed the same sentence for the same reasons, regardless of an erroneous Guidelines calculation. United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). When it is clear that the “court wanted to ‘moot’ the defendant’s objection — by ordering a sentence that effectively grants counsel’s objection — the appeal of the ‘sentencing error’ makes no sense.” United States v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017).

In imposing a 135-month sentence, the district court stated “to the extent that I erred in the application of the enhancement of plus six, the sentence would still be the same.” This court has held that similar statements during sentencing provide sufficient basis to conclude that any potential error resulting from an improperly calculated Guidelines range is harmless. United States v. Castro-Alfonso, 841 F.3d 292, 298-99 (5th Cir. 2016); United States v. Richardson, 713 F.3d 232, 237 *770 (5th Cir. 2013). We do not require the district court to recite “magic words.” Shepherd, 848 F.3d at 427. The district court made it abundantly clear that it would have imposed this sentence, regardless of whether it improperly calculated the appropriate Guidelines range by including the six-level enhancement.

CONCLUSION

The appellant’s sentence is AFFIRMED.

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850 F.3d 767, 2017 WL 945482, 2017 U.S. App. LEXIS 4189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-santiago-sanchez-ca5-2017.

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