IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20752

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

SALVADOR ANTONIO CRUZ, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-632-1

Before DAVIS, HAYNES, and GRAVES, Circuit Judges.

PER CURIAM:*

Salvador Antonio Cruz appeals the sentence he received upon his 

conviction following a guilty plea under 8 U.S.C. § 1326(a) and (b)(1). 

Specifically, he challenges the district court’s failure to award him a reduction 

in his guidelines level for acceptance of responsibility. We AFFIRM.

We pretermit the question of whether the district court erroneously 

denied an acceptance of responsibility reduction because we conclude that any 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 26, 2018

Lyle W. Cayce

Clerk

 Case: 17-20752 Document: 00514572256 Page: 1 Date Filed: 07/26/2018
No. 17-20752

2

error was harmless. At the sentencing hearing, Cruz’s counsel specifically 

referenced the range that would be correct if credit had been granted for 

acceptance of responsibility. Thus, the district court explicitly had before it 

both ranges, one with the credit and one without. The district court also 

expressly stated: “if I gave [credit] to him, I would vary upwards to reach the 

same outcome.” 

Cruz argues that such a statement is insufficient to establish 

harmlessness, citing United States v. Tanksley, 848 F.3d 347, 353 (5th Cir. 

2017) (“Tanskley I”) for the proposition that the district court must state that 

it would impose “the same sentence for the same reasons.” In so doing, he fails 

to cite to the supplemental opinion in Tanskley which made clear that Tanksley

was addressing only one of the ways that harmlessness in sentencing can be 

established. United States v. Tanksley, 854 F.3d 284, 286 n.1 (5th Cir. 2017).

We have stated that “there are two ways to show harmless error if the 

wrong guidelines range is employed.” United States v. Guzman-Rendon, 864 

F.3d 409, 411 (5th Cir.), cert. denied, 138 S. Ct. 524 (2017). One is the way 

addressed in Tanskley I, where the record shows that the district court would 

give the same sentence for the same reason. But the other way, not supported 

by the record in Tanksley I, is to show “that the district court considered both 

ranges . . . and explained that it would give the same sentence either way.” 

Guzman-Rendon, 864 F.3d at 411. That is exactly what happened here. We 

conclude, therefore, than any error was harmless.1 AFFIRMED.

 

1 In a footnote, Cruz makes reference to this line of cases and argues that the district 

court did not consider the correct range because the judge did not expressly say “24-30 

months.” However, the sentencing transcript reveals that both sides agreed that the proper 

range, if acceptance of responsibility credit was granted, was 24-30 months. Only two ranges 

were considered: the one Cruz calls “incorrect” (30-37 months) and the one he calls “correct” 

(24-30 months). Thus, the record demonstrates that the district court considered that range; 

it was not necessary to use “magic words.” United States v. Vega-Garcia, 893 F.3d 326, 328

(5th Cir. 2018).

 Case: 17-20752 Document: 00514572256 Page: 2 Date Filed: 07/26/2018