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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10649

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ESTEBAN JIMENEZ-GARCIA

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:08-CR-55-1

Before HIGGINBOTHAM, BARKSDALE, and HAYNES, Circuit Judges.

PER CURIAM:*

Esteban Jimenez-Garcia (Jimenez) pleaded guilty to illegal reentry into

the United States following deportation, in violation of 8 U.S.C. § 1326. The

district court sentenced him to 57 months of imprisonment. 

Jimenez appeals only his sentence, claiming the 16-level increase applied

pursuant to Guideline § 2L1.2(b)(1)(A)(ii) constitutes reversible error. The

United States Court of Appeals

Fifth Circuit

F I L E D

June 22, 2009

Charles R. Fulbruge III

Clerk
No. 08-10649

2

district court concluded that Jimenez’ prior Virginia conviction of attempted

unlawful wounding, a violation of VA. CODE ANN. § 18.2-51, is a crime of violence.

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the guidelinesentencing range for use in deciding on the sentence to impose. Gall v. United

States, S. Ct. 586, 596 (2007). In that respect, its application of the guidelines is

reviewed de novo; its factual findings, only for clear error. E.g., United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005). 

 Not every sentencing error requires reversal. United States v. Bonilla,

524 F.3d 647, 656 (5th Cir. 2008), cert. denied, 129 S. Ct. 904 (2009). When the

district court imposes a non-guideline sentence that did not “directly ‘result’”

from an error in calculating the advisory guideline range, a sentence need not

be vacated. Id. (citation omitted).

Jimenez contends that the application of the 16-level enhancement is not

harmless error. He asserts that his sentence was 27 months greater than the

top of the guideline range that would have applied absent that increase, and

equal to the bottom of the guideline range that applied with the enhancement.

This fact, according to Jimenez, distinguishes the instant matter from circuit

precedent and prevents a determination that the sentence did not result from a

misapplication of the guidelines. Jimenez claims: the district court believed

that it was sentencing within the correct guideline range; it did not intend to

depart; and it imposed a sentence using the wrong range.

In Bonilla, 524 F.3d at 656, our court affirmed a non-guideline, alternative

sentence that the district court imposed under analogous facts. In Bonilla, the

district court did not comment on the guideline ranges that would have applied

with or without the 16-level increase. See id. Bonilla explained that, prior to

imposing the non-guideline sentence, the district court specifically referenced the
No. 08-10649

3

parties’ claims made before and at sentencing and held that the sentence “did

not result from the guideline error”. Id. at 656-57, 659.

Here, the district court considered the presentence investigation report,

Jimenez’ objections to it, and the parties’ claims at sentencing, and in

presentencing briefs, regarding the applicable guideline ranges. The district

court explained that, even if the application of the 16-level increase was

incorrect, it would have imposed the same sentence “in any event after

considering all of the factors contained in Section 3553(a)”. The record reflects

that the district court determined Jimenez’ sentence after having considered the

§ 3553(a) factors and the facts attendant to Jimenez’ sentencing proceeding,

including his criminal history, the need to deter Jimenez from future criminal

activity, and the need to protect the public. See Bonilla, 524 F.3d at 658-59.

AFFIRMED.