United States v. Manuel Rafael Ortiz-Cruz

[DO NOT PUBLISH]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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