IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40470

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

JOSE SALVADOR ORTIZ-CHAVIRA, 

 Defendant - Appellant 

Appeal from the United States District Court

 for the Southern District of Texas 

USDC No. 5:15-CR-806

Before JOLLY and ELROD, Circuit Judges, and STARRETT, District Judge.*

PER CURIAM:**

Jose Salvador Ortiz-Chavira (“Ortiz-Chavira”) challenges the district 

court’s application of a 12-level sentencing enhancement based on a previous 

burglary conviction under Texas law. There is no dispute that the district court 

erred in applying the 12-level enhancement under the Guidelines. But because 

that error was harmless, we affirm. 

 

* District Judge for the Southern District of Mississippi, sitting by designation. 

** 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

October 6, 2017

Lyle W. Cayce

Clerk

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I. 

 Ortiz-Chavira pleaded guilty to unlawful reentry into the United States

in violation of 8 U.S.C. § 1326(a) and (b). Before his 2015 deportation, he had 

been convicted of burglary of a habitation under Texas Penal Code § 30.02. His 

Presentence Investigation Report recommended a 12-level sentence 

enhancement because that Texas burglary conviction was a “crime of violence” 

within the meaning of Sentencing Guidelines § 2L1.2. Ortiz-Chavira objected 

to the enhancement. 

The district court overruled the objection and applied the recommended 

enhancement, bringing his total offense level to 17. This offense level, paired 

with a criminal history category of III, yielded a Guidelines range of 30 to 37 

months’ imprisonment. The court sentenced Ortiz-Chavira to 30 months. In 

arriving at this decision, the district judge explained that she had considered 

the factors under 18 U.S.C. § 3553(a) and, even if the court incorrectly 

calculated the Guidelines range, a 30-month sentence was sufficient but not 

greater than necessary. Ortiz-Chavira appeals. 

II. 

When reviewing a sentencing decision, we first “consider whether the 

district court committed a significant procedural error.” United States v. 

Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009). The parties here agree 

that the district court erred in applying the 12-level enhancement.1 But “‘not 

every procedural error will require outright reversal,’ and ‘certain “harmless” 

errors do not warrant reversal.’” United States v. Garcia-Figueroa, 753 F.3d 

179, 192 (5th Cir. 2014) (quoting Delgado-Martinez, 564 F.3d at 752). Under 

this harmless-error standard of review, the proponent of the sentence “must 

 

1 On this record, it is unclear what the correct sentencing range would be. In any 

event, Ortiz-Chavira is no longer incarcerated. 

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first demonstrate that the district court would have imposed the same sentence 

outside of the appropriate Sentencing Guidelines range for the same reasons, 

and second, the proponent must show that the district court was not influenced 

by an erroneous Guidelines calculation.” United States v. Castro-Alfonso, 841 

F.3d 292, 298 (5th Cir. 2016) (citing United States v. Ibarra-Luna, 628 F.3d 

712, 718 (5th Cir. 2010)).2 

III. 

The record is clear that the district court would have imposed the 30-

month sentence regardless of the appropriate Guidelines range and was not 

influenced by the erroneous Guidelines calculation. At sentencing, the district 

judge, invoking § 3553(a), stated, 

[E]ven if I’m wrong on that [Guidelines] scoring, I still think that 

a 30-month sentence is sufficient, but not greater than necessary. 

And it’s really looking at everything that I’ve already gone over 

with you, the different convictions that you have on your record, 

continued involvement in criminal conduct, and then that 

deportation and then return two weeks after having been 

deported. 

Because of all of that, I think that a 30-month sentence is 

sufficient, but not greater than necessary. 

Read plainly, the district judge said she would have imposed the same sentence 

regardless of the Guidelines and gave her reasons for doing so. This Court 

takes her at her word. And similar language has served as the basis for finding 

harmless error in other cases. See, e.g., United States v. Sanchez, 850 F.3d 767, 

769–70 (5th Cir. 2017); Castro-Alfonso, 841 F.3d at 298–99; United States v. 

Richardson, 713 F.3d 232, 237 (5th Cir. 2013).

 

2 Ortiz-Chavira says there are different harmlessness metrics based on whether the 

district court considered the correct Guidelines range in determining the length of the 

defendant’s sentence. Here, it is unclear whether the district court considered an alternative 

Guidelines range in addition to the miscalculated range. In any event, we affirm OrtizChavira’s sentence under the “more demanding” standard. United States v. Rico-Mejia, 859 

F.3d 318, 323 (5th Cir. 2017). 

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The Court recognizes that the district judge twice referenced “the low 

end” when imposing the 30-month sentence. Ortiz-Chavira, citing United 

States v. Martinez-Romero, emphasizes this point to argue that the district 

court was influenced by the erroneous Guidelines range. 817 F.3d 917 (5th 

Cir. 2016). But Martinez-Romero is distinguishable. There, the sentencing 

court imposed a sentence at the bottom of the incorrect range and “expressly 

stated that Martinez’s prior conduct was ‘sufficient to justify a sentence within 

th[e] range of 46–57 months.’” Id. at 926 (emphasis added). The district court 

in this case imposed a sentence within the incorrect range but justified the 

precise sentence as opposed to the improper range. Quoting § 3553(a), the 

district judge unequivocally stated that 30 months’ imprisonment was 

“sufficient, but not greater than necessary” for three reasons. The record 

“convince[s] us that the district court had a particular sentence in mind and 

would have imposed it, notwithstanding the error made in arriving at the 

defendant’s guideline range.” Delgado-Martinez, 564 F.3d at 753 (quoting 

United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998)). 

IV. 

In sum, we hold the procedural error in this case was harmless and does 

not warrant reversal. Ortiz-Chavira’s sentence is 

AFFIRMED. 

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