United States v. Torres-Soria

* 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that this opinion should not be published and is not precedent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. 01-20614
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS TORRES-SORIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-847-ALL
--------------------
February 11, 2003
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Luis Torres-Soria (“Torres”) appealed his sentence for illegal
reentry after deportation, a violation of 8 U.S.C. § 1326. Torres

-- 1 of 2 --

No. 01-20614
-2-
argued that a prior misdemeanor offense that resulted in a sentence
of probation should not have been included in his criminal history
score, because he did not knowingly and voluntarily waive his right
to counsel in that case. This court affirmed. See United States
v. Torres-Soria, No. 01-20614 (5th Cir. Apr. 10, 2002) (unpub-
lished).
Torres then petitioned for a writ of certiorari, and in
Torres-Soria v. United States, 123 S. Ct. 658 (2002), the Court
granted Torres’s petition, vacated the judgment, and remanded to
this court for further consideration in light of Alabama v.
Shelton, 535 U.S. 654 (2002).
We need not decide whether Torres’s sentence of probation was
valid under Shelton, because even if the district court did err in
the calculation of his criminal history score, the error was
harmless. See Williams v. United States, 503 U.S. 193, 202-03
(1992) (misapplication of guidelines harmless if it did not affect
the sentence imposed). Granting the objection would have resulted
in a lower range of 10 to 16 months’ imprisonment, but at sen-
tencing, the court stated that it would have imposed the same sen-
tence even if it had granted Torres’s objections.
AFFIRMED.

-- 2 of 2 --