USA v. Manuel Mendoza

Filing

UNPUBLISHED OPINION FILED. [09-10539 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/09/2010 for Appellant Manuel Mendoza [09-10539]

USA v. Manuel Mendoza

Doc. 0

Case: 09-10539

Document: 00511267235

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10539 S u m m a r y Calendar October 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A N U E L MENDOZA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:08-CR-285-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* M a n u e l Mendoza appeals the 120-month, within-guidelines sentence im p o s e d after he pleaded guilty to being a felon in possession of a firearm. The p r e s e n t e n c e report (PSR) assigned Mendoza a base offense level of 20 based on U .S .S .G . § 2K2.1(a)(4)(A), which provides for that offense level if the instant o ffe n s e was committed subsequent to a conviction for a "crime of violence." § 2K2.1(a)(4)(A). At sentencing, Mendoza requested that the district court vary

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion s h o u ld not be published and is not precedent except under the limited c ir c u m s t a n c e s set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-10539

Document: 00511267235 Page: 2 No. 09-10539

Date Filed: 10/19/2010

d o w n w a r d from the guidelines based, inter alia, on the Government's refusal to m o v e for the third point for acceptance of responsibility, pursuant to § 3E1.1(b), b e c a u s e Mendoza refused to waive his appellate rights. Mendoza argues that the district court erred (1) by ruling that his prior T e x a s conviction for evading arrest with a vehicle was a crime of violence; (2) by c o n c lu d in g that it lacked the authority to vary from the Guidelines based on the G o v e r n m e n t 's refusal to move for the third point for acceptance of responsibility; a n d (3) by running Mendoza's sentence consecutive to state sentences that were n o t yet imposed. A fte r Booker, this court reviews whether a sentence is reasonable under a n abuse-of-discretion standard. United States v. Herrera-Garduno, 519 F.3d 5 2 6 , 529 (5th Cir. 2008). "In performing this review, [this court] `first ensure[s] t h a t the district court committed no significant procedural error' and `then c o n s id e r [s ] the substantive reasonableness of the sentence imposed." Id.

(q u o tin g Gall, 128 S. Ct. at 597). "A discretionary sentence imposed within a p r o p e r ly calculated guidelines range is presumptively reasonable." United

S ta te s v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.). We review the d is t r ic t court's interpretation or application of the Guidelines de novo and its fa c t u a l findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 7 5 1 , 764 (5th Cir. 2008). With regard to Mendoza's first argument, a crime of violence is defined, in t e r alia, as any offense punishable by imprisonment for a term exceeding one y e a r and that"otherwise involves conduct that presents a serious potential risk o f physical injury to another," also known as "the residual clause." § 4B1.2(a)(1); § 2K2.1, comment. (n.1). Mendoza's argument that his Texas conviction for e v a d in g arrest with a vehicle is not a crime of violence under § 4B1.2 is fo r e c lo s e d by United States v. Harrimon, 568 F.3d 531, 533-37 (5th Cir.), cert. d e n ie d , 130 S. Ct. 1015 (2009).

2

Case: 09-10539

Document: 00511267235 Page: 3 No. 09-10539

Date Filed: 10/19/2010

W it h regard to Mendoza's second argument, the district court's decision n o t to grant a variance does not indicate that it believed that it lacked the a u t h o r it y to impose a non-guidelines sentence. The totality of the circumstances r e v e a ls that the district court denied the requested variance because it believed t h a t a within-guidelines sentence was appropriate. See United States v. Newson, 5 1 5 F.3d 374, 379 (5th Cir. 2008). Accordingly, the district court did not err by d e n y in g the requested variance. F in a lly , Mendoza concedes that his third argument is foreclosed by United S ta te s v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other g r o u n d s by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which h e ld that a district court may order a term of imprisonment to run consecutively w it h an unimposed state sentence. AFFIRMED.

3