* 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. 07-20423

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MIQUEL REA-HERRERA, also known as Miguel Angel Rea, also known as Jose

Alfredo Pena, also known as Jose Garza

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-29-1

Before DAVIS, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Miquel Rea-Herrera appeals the non-Guidelines sentence imposed by the

district court following his guilty-plea conviction for illegal reentry after

deportation in violation of 8 U.S.C. § 1326. For the following reasons, we affirm

the judgment of the district court.

Rea-Herrera first contends that the 16-level enhancement to his

Guidelines offense level was improper because the Texas conviction on which it

United States Court of Appeals

Fifth Circuit

F I L E D

January 20, 2009

Charles R. Fulbruge III

Clerk
No. 07-20423

2

was based—felony assault of a family member in violation of TEX. PENAL CODE

ANN. § 22.01—is not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The

Government concedes thatthe 16-level enhancement was error pursuant to this

court’s opinion in United States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th

Cir. 2006), cert. denied, 127 S. Ct. 1351 (2007). The Government argues,

however, that a reversal of Rea-Herrera’s sentence is not required.

Like the defendant in United States v. Bonilla, 524 F.3d 647, 655 (5th Cir.

2008), petition for cert. filed (Oct. 3, 2008) (No. 08-6668), Rea-Herrera argued to

the district court that without the crime-of-violence enhancement, his total

offense level and Guidelines range would have been lower, thus notifying the

district court of the range both before and after the enhancement. Moreover,

because in this case the district court indicated that it would have imposed the

same sentence even without the 16-level enhancement, Rea-Herrera’s sentence

was not the result of the district court’s erroneous application of the Guidelines,

and a reversal is therefore not required. See id. at 655-57.

Rea-Herrera next argues that the district court’s reasons for the upward

variance did not justify the non-Guidelines sentence imposed, which was more

than three times higher than the properly calculated Guidelines range. He also

argues that it was improper for the court to consider his 2006 arrest because the

charge was dismissed for insufficient evidence and that it was improper to cite

sentencing disparity as a ground for the variance because the Guidelines had

already taken into account his offense and criminal history.

The district court articulated myriad grounds under 18 U.S.C. § 3553(a)

for the upward variance, the non-Guidelines sentence was less than the

statutory-maximum sentence under § 1326, and the extent of the variance is

consistent with other sentences that we have affirmed. See United States v.

Williams, 517 F.3d 801, 812 (5th Cir. 2008); United States v. Brantley, 537 F.3d

347, 348-50 (5th Cir. 2008); United States v. Jones, 444 F.3d 430, 433-34, 441-42

(5th Cir.), cert. denied, 548 U.S. 915 (2006), United States v. Smith, 417 F.3d
No. 07-20423

3

483, 492 (5th Cir.), cert. denied, 126 S. Ct. 713 (2005). In light of the record and

the deference that we afford to the district court’s findings, the district court did

not abuse its discretion by concluding that a 86-month sentence was reasonably

necessary to achieve the objectives of § 3553(a). See Williams, 517 F.3d at 812-

13.

Finally, Rea-Herrera argues that the district court violated FED. R. CRIM.

P. 32(e) and (i) and his right to due process when it denied his motion to provide

him with the probation officer’s sentencing recommendation. The district court’s

compliance with Rule 32 is a question of law subject to de novo review. United

States v. Medina, 161 F.3d 867, 874 (5th Cir. 1998). Rea-Herrera has not cited

any persuasive authority to support his conclusory argument that the district

court abused its discretion under that local rule or violated his right to due

process. The district court’s judgment is AFFIRMED.