United States v. Gonzalez-Enriquez ( 2023 )

Case: 22-10199 Document: 00516607507 Page: 1 Date Filed: 01/11/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10199
Summary Calendar FILED
____________ January 11, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gilberto Gonzalez-Enriquez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-268-1
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Gilberto Gonzalez-Enriquez appeals the below-Guidelines 52-
months’ sentence imposed following his guilty-plea conviction for illegal
reentry after removal, in violation of 8 U.S.C. § 1326(a), (b)(1). He maintains
the court erred by applying an additional 10-level enhancement under
Sentencing Guideline § 2L1.2(b)(3)(A) for his 2019 felony-driving-while-
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10199 Document: 00516607507 Page: 2 Date Filed: 01/11/2023
No. 22-10199
intoxicated conviction because instead, under Texas law and Application
Note 5, only one 10-level enhancement under Guideline § 2L1.2(b)(2)(A)
should have been applied.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
an ultimate sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, as in this instance, 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).
We need not decide whether the court procedurally erred in applying
the enhancement, because the Government has met its burden on appeal of
showing that any error was harmless by demonstrating: the court “would
have imposed the same sentence had it not made the error”; and it “would
have done so for the same reasons it gave at . . . sentencing”. United States
v. Guzman-Rendon, 864 F.3d 409, 411–12 (5th Cir. 2017) (citation omitted)
(rejecting claim of error as harmless without deciding whether court erred).
AFFIRMED.
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