IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2009
No. 08-10649
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ESTEBAN JIMENEZ-GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-55-1
Before HIGGINBOTHAM, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
Esteban Jimenez-Garcia (Jimenez) pleaded guilty to illegal reentry into
the United States following deportation, in violation of 8 U.S.C. § 1326. The
district court sentenced him to 57 months of imprisonment.
Jimenez appeals only his sentence, claiming the 16-level increase applied
pursuant to Guideline § 2L1.2(b)(1)(A)(ii) constitutes reversible error. The
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10649
district court concluded that Jimenez’ prior Virginia conviction of attempted
unlawful wounding, a violation of V A. C ODE A NN. § 18.2-51, is a crime of violence.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, S. Ct. 586, 596 (2007). In that respect, its application of the guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
Not every sentencing error requires reversal. United States v. Bonilla,
524 F.3d 647, 656 (5th Cir. 2008), cert. denied, 129 S. Ct. 904 (2009). When the
district court imposes a non-guideline sentence that did not “directly ‘result’”
from an error in calculating the advisory guideline range, a sentence need not
be vacated. Id. (citation omitted).
Jimenez contends that the application of the 16-level enhancement is not
harmless error. He asserts that his sentence was 27 months greater than the
top of the guideline range that would have applied absent that increase, and
equal to the bottom of the guideline range that applied with the enhancement.
This fact, according to Jimenez, distinguishes the instant matter from circuit
precedent and prevents a determination that the sentence did not result from a
misapplication of the guidelines. Jimenez claims: the district court believed
that it was sentencing within the correct guideline range; it did not intend to
depart; and it imposed a sentence using the wrong range.
In Bonilla, 524 F.3d at 656, our court affirmed a non-guideline, alternative
sentence that the district court imposed under analogous facts. In Bonilla, the
district court did not comment on the guideline ranges that would have applied
with or without the 16-level increase. See id. Bonilla explained that, prior to
imposing the non-guideline sentence, the district court specifically referenced the
2
No. 08-10649
parties’ claims made before and at sentencing and held that the sentence “did
not result from the guideline error”. Id. at 656-57, 659.
Here, the district court considered the presentence investigation report,
Jimenez’ objections to it, and the parties’ claims at sentencing, and in
presentencing briefs, regarding the applicable guideline ranges. The district
court explained that, even if the application of the 16-level increase was
incorrect, it would have imposed the same sentence “in any event after
considering all of the factors contained in Section 3553(a)”. The record reflects
that the district court determined Jimenez’ sentence after having considered the
§ 3553(a) factors and the facts attendant to Jimenez’ sentencing proceeding,
including his criminal history, the need to deter Jimenez from future criminal
activity, and the need to protect the public. See Bonilla, 524 F.3d at 658-59.
AFFIRMED.
3