* 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should not be published and is not precedent except under the limited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. 07-40928

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSHUA JOB SOLIS-HERRERA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:07-CR-15-1

Before REAVLEY, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Joshua Job Solis-Herrera (Solis) appeals the 70-month sentence he

received following his guilty plea conviction for illegal reentry, in violation of 8

U.S.C. § 1326. This court reviews a sentencing decision for “reasonableness,”

which is the equivalent of abuse-of-discretion review. United States v. Gall, 128

S. Ct. 586, 594 (2007). 

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-40928

2

The district court did not treat the Guidelines as mandatory and stated

that it had considered the § 3553(a) factors to determine a reasonable sentence.

See id. Solis argues that the sentence should nevertheless be vacated and the

case summarily remanded on the basis of the Supreme Court’s intervening

decisions in Gall and Kimbrough v. United States, 128 S. Ct. 558 (2007), which,

he urges,“have fundamentally altered the legal landscape of federal sentencing.”

The argument is not well-taken as nothing in the record suggested that the

district court was constrained by this court’s precedent from fully considering

Solis’s arguments for a non-guideline sentence. See United States v. CamposMaldonado, 531 F.3d 337, 338-39 (5th Cir. 2008). Specifically, Solis contends

that the district court erroneously felt it lacked the discretion to disagree with

the Guidelines instruction to run the sentence consecutively to his prior

undischarged term. However, the record establishes that the district court was

aware of its authority to decline to impose a consecutive sentence if it felt the

purposes of § 3553(a) were better served by concurrent sentences. Contrary to

Solis’s assertion, the district court did not feel it lacked the authority to impose

concurrent sentences; rather, it simply denied his request for concurrent

sentences based on its determination that a consecutive sentence was

appropriate on the facts of the case.

Solis further contends thatthe district courtfelt constrained notto deviate

from the Guidelines despite its disagreement with guidelines policy choices

regarding the 16-level U.S.S.G. § 2L1.2(b) increase. This argument is similarly

not supported by the record. The district court rejected Solis’s contention that

the 16-level enhancement was inappropriate because robbery was not a “crime

of violence” within the meaning of § 2L1.2(b)(1)(A), which argument Solis

conceded was foreclosed by Fifth Circuit precedent. See United States v.

Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006). At no time did the

district courtindicate thatit would have been inclined notto impose the increase
No. 07-40928

3

because of the individual circumstances of Solis’s conviction but believed it

lacked the authority to do so.

Additionally, Solis argues, for the first time on appeal, that the district

court erred in assessing the 16-level increase because such increase is

“empirically unsupported.” By “empirically unsupported,” Solis means that the

Sentencing Commission did not determine the appropriateness of the amount

of increase, 16 levels, based on empirical data and thus the decision to increase

by 16 levels was “essentially arbitrary.”

To satisfy procedural reasonableness, the district court is required first to

correctly calculate the guidelines range, and the § 2L1.2(b)(1)(A) increase was

properly applied in the instant case due to Solis’s prior robbery conviction. See

Gall, 128 S. Ct. at 597; see also Santiesteban-Hernandez, 469 F.3d at 378. Solis’s

argument that the enhancement should not apply due to any lack of empirical

support is without merit. See Campos-Maldonado, 531 F.3d at 338-39.

AFFIRMED.