IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50572

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NATHAN ARZOLA-ESPINOZA, also known as Nathan Espinoza Arzola,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:10-CR-817-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

After Defendant-Appellant Nathan Arzola-Espinoza pleaded guilty to

importing more than 50 kilograms of marijuana into this country from Mexico,

the district court sentenced him above the guidelines range of imprisonment to

52 months of imprisonment and three years of supervised release. ArzolaEspinoza contends that the district court erred in calculating his guidelines

range of imprisonment when it applied a two-level enhancement pursuant to

U.S.S.G. § 3B1.4 based on its finding that he used minors during the commission

United States Court of Appeals

Fifth Circuit

F I L E D

May 30, 2012

Lyle W. Cayce

Clerk

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: 11-50572 Document: 00511871431 Page: 1 Date Filed: 05/30/2012
No. 11-50572

of his offense. He claims that his children were merely present and that alone

their presence was insufficient to support the enhancement. The government

counters that any error was harmless.

We have held that a guidelines calculation error may be harmless even

when the district court has not considered the correct guidelines range. See

United States v. Ibarra-Luna, 628 F.3d 712, 716-18 (5th Cir. 2010). First, “the

[g]overnment must convincingly demonstrate that the district court would have

imposed a sentence outside the correct Guidelines range for the same reasons it

gave for imposing a sentence outside the miscalculated Guidelines range.” Id.

at 718-19. Second, the government “must show that the . . . sentence the district

court imposed was not influenced in any way by the erroneous Guidelines

calculation.” Id. at 719.

The government has met this burden in the instant case. The district

court would have found that without the enhancement the guidelines range was

inadequate for the same reasons that it found that with the enhancement the

higher guidelines range was inadequate. Further, it is apparent from the record

that any erroneous guidelines computation did not influence the sentence. 

Immediately after overruling Arzola-Espinoza’s objection to the enhancement

during the sentencing hearing, the district court explained to counsel that the

sentence “will be the sentence with or without the guideline whichever I fashion

in this case.” The district court explained that (1) it was imposing the nonguideline sentence because the guidelines calculations accounted for only one of

Arzola-Espinoza’s imported loads, and (2) statements given by Arzola-Espinoza

and his wife corroborated that the instant offense involved his tenth load. As

there is evidence in the record that the district court would have imposed “the

very same sentence” regardless whether the two-level enhancement was applied

in error, any error was harmless. Ibarra-Luna, 628 F.3d at 719.

AFFIRMED.

2

Case: 11-50572 Document: 00511871431 Page: 2 Date Filed: 05/30/2012