from the United States District Court for the Western
District of Texas
JONES and OWEN, Circuit Judges, and ENGELHARDT [*] District Judge.
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.
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.
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
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).
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
inquiry' 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).
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).
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 (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.