United States v. Victor Andino-Hernandez ( 2016 )

Case: 15-41090 Document: 00513560607 Page: 1 Date Filed: 06/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41090 FILED
Summary Calendar
June 22, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR MANUEL ANDINO-HERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:15-CR-263-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Victor Manuel-Andino Hernandez was convicted, pursuant to his guilty
plea, of being illegally present in the United States after removal. The district
court enhanced his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a
determination that his Florida conviction of aggravated battery was a crime of
violence (COV). Andino-Hernandez was sentenced within the guidelines range
to a 50-month term of imprisonment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41090 Document: 00513560607 Page: 2 Date Filed: 06/22/2016
No. 15-41090
On appeal, Andino-Hernandez contends that his Florida aggravated
battery conviction was not a COV and that the district court therefore erred in
applying the 16-level enhancement. The Government argues that the
enhancement was properly applied because Andino-Hernandez’s aggravated
battery offense has as an element the use, attempted use, or threatened use of
physical force. As discussed below, we need not determine whether the district
court erred in applying the enhancement because we agree with the
Government’s contention that the error, if any, in applying the enhancement
was harmless. See United States v. Richardson, 676 F.3d 491, 511-12 (5th Cir.
2012).
When a significant procedural error occurs at sentencing, remand for
resentencing is required unless the error was harmless. United States v.
Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009). The district court’s
remarks at sentencing convincingly demonstrate that it had a particular
sentence in mind, that it would have imposed the same 50-month sentence had
it not made the alleged error with respect to imposition of the enhancement,
and that it would have imposed that sentence for the same reasons. See United
States v. Ibarra-Luna, 628 F.3d 712, 714, 718 (5th Cir. 2010); see also
Richardson, 713 F.3d at 237 (“[A]ny error in calculating the total offense level
was harmless, given the district court’s clear statements that it would have
imposed the same sentence regardless of the correctness in the calculation.”).
Because the Government has sufficiently demonstrated that any error in
applying the enhancement was harmless, the district court’s judgment is
AFFIRMED.
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