USA v. Jason Garcia-Gonzalez

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USA v. Jason Garcia-Gonzalez

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Case: 09-10944

Document: 00511183875

Page: 1

Date Filed: 07/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10944 S u m m a r y Calendar July 23, 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. J A S O N GARCIA-GONZALEZ, 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. 3:09-CR-78-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* J a s o n Garcia-Gonzalez appeals the sentence imposed following his guiltyp le a conviction for being an alien found unlawfully in the United States after p r e v io u s ly having been removed. He contends the district court erred by

im p o s in g : a crime-of-violence enhancement based on his prior Texas conviction fo r burglary of a habitation; and a criminal history point for his violating Texas la w by falsely identifying himself when he was arrested. He maintains these e r r o r s render his sentence substantively unreasonable.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-10944

Document: 00511183875 Page: 2 No. 09-10944

Date Filed: 07/23/2010

A lt h o u g h post-Booker, the Sentencing Guidelines are advisory only, and a n ultimate sentence is reviewed for reasonableness under an abuse-ofd is c r e t io n standard, the district court must still properly calculate the guidelines e n te n c in g range for use in deciding on the sentence to impose. Gall v. United S ta te s , 552 U.S. 38, 50-51 (2007). In that respect, its application of the

g u i d e lin e s is reviewed de novo; its factual findings, only for clear error. E.g., U n ite d States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United S ta te s v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). To determine the propriety of a crime-of-violence enhancement "when a d e fe n d a n t 's prior conviction is under a statute that identifies several separate o ffe n s e s , some violent and others not, we . . . look to certain other documents . . . t o determine `which statutory phrase was the basis for conviction'". United S ta te s v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010) (citing Johnson v. United S ta te s , 130 S. Ct. 1265, 1273 (2010)), petition for cert. filed (U.S. 6 Jul. 2010) (No. 1 0 -5 2 8 9 ). The indictment for Garcia's prior Texas conviction charged him with v io la t in g both subsections (a)(1) and (a)(3) of Texas Penal Code § 30.02 (B u r g la r y ) , but the judgment does not show whether he pleaded guilty to v io la t in g subsection (a)(1), subsection (a)(3), or both (they are not mutually e x c lu s iv e provisions). To that end, Garcia, his attorney, and the prosecutor all s ig n e d written plea admonishments stating: "It is mutually agreed and

r e c o m m e n d e d by the parties" that "[p]rosecution [is] to proceed on all allegations in the indictment". (Emphasis added.) Therefore, Garcia admitted to violating b o th subsections, and the district court did not err in applying the crime-ofv io le n c e enhancement. See United States v. Garcia-Mendez, 420 F.3d 454,

4 5 6 -5 7 (5th Cir. 2005) (holding violation of TEX. PENAL CODE § 30.02(a)(1) c o n s t it u t e s crime of violence). G a r c ia also maintains his conviction pursuant to Texas law for falsely id e n tify in g himself on the same day that he was found unlawfully present in the U n ite d States should not have been assigned a criminal history point pursuant 2

Case: 09-10944

Document: 00511183875 Page: 3 No. 09-10944

Date Filed: 07/23/2010

t o Guideline § 4A1.2(a)(1). Specifically, he contends that, because he falsely id e n tifie d himself in order to avoid detection as unlawfully present in the United S t a te s , his false-identification offense was "part of the instant [reentry] offense" a n d , therefore, should not result in his being assessed a criminal history point. See U.S.S.G. §§ 1B1.3; 4A1.2, cmt. n.1 (defining "prior sentence"). But, because it is "plausible in light of the record read as a whole" that Garcia falsely id e n tifie d himself in order to prevent being charged with several other crimes he h a d committed during the two weeks before his arrest, the district court did not c le a r ly err in assessing the criminal-history point. See United States v. Cooper, 2 7 4 F.3d 230, 238 (5th Cir. 2001) (citing United States v. Puig-Infante, 19 F.3d 9 2 9 , 943 (5th Cir. 1994)). G a r c ia 's substantive-reasonableness challenge rests on his contentions t h a t his guidelines range was improperly calculated. He has not shown the d is t r ic t court erred in calculating that range; and, therefore, he has not overcome t h e presumption that his within-guidelines sentence was reasonable. See United S ta te s v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). A F F IR M E D .

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