IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10944

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JASON GARCIA-GONZALEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CR-78-1

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Jason Garcia-Gonzalez appeals the sentence imposed following his guiltyplea conviction for being an alien found unlawfully in the United States after

previously having been removed. He contends the district court erred by

imposing: a crime-of-violence enhancement based on his prior Texas conviction

for burglary of a habitation; and a criminal history point for his violating Texas

law by falsely identifying himself when he was arrested. He maintains these

errors render his sentence substantively unreasonable.

United States Court of Appeals

Fifth Circuit

F I L E D

July 23, 2010

Lyle W. Cayce

Clerk

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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No. 09-10944

Although post-Booker, the Sentencing Guidelines are advisory only, and

an ultimate sentence is reviewed for reasonableness under an abuse-ofdiscretion standard, the district court must still properly calculate the guidelinesentencing range for use in deciding on the sentence to impose. Gall v. United

States, 552 U.S. 38, 50-51 (2007). In that respect, its application of the

guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United

States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

To determine the propriety of a crime-of-violence enhancement “when a

defendant’s prior conviction is under a statute that identifies several separate

offenses, some violent and others not, we . . . look to certain other documents . . .

to determine ‘which statutory phrase was the basis for conviction’”. United

States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010) (citing Johnson v. United

States, 130 S. Ct. 1265, 1273 (2010)), petition for cert. filed (U.S. 6 Jul. 2010) (No.

10-5289). The indictment for Garcia’s prior Texas conviction charged him with

violating both subsections (a)(1) and (a)(3) of Texas Penal Code § 30.02

(Burglary), but the judgment does not show whether he pleaded guilty to

violating subsection (a)(1), subsection (a)(3), or both (they are not mutually

exclusive provisions). To that end, Garcia, his attorney, and the prosecutor all

signed written plea admonishments stating: “It is mutually agreed and

recommended by the parties” that “[p]rosecution [is] to proceed on all allegations

in the indictment”. (Emphasis added.) Therefore, Garcia admitted to violating

both subsections, and the district court did not err in applying the crime-ofviolence enhancement. See United States v. Garcia-Mendez, 420 F.3d 454,

456-57 (5th Cir. 2005) (holding violation of TEX. PENAL CODE § 30.02(a)(1)

constitutes crime of violence).

Garcia also maintains his conviction pursuant to Texas law for falsely

identifying himself on the same day that he was found unlawfully present in the

United States should not have been assigned a criminal history point pursuant

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No. 09-10944

to Guideline § 4A1.2(a)(1). Specifically, he contends that, because he falsely

identified himself in order to avoid detection as unlawfully present in the United

States, his false-identification offense was “part of the instant [reentry] offense”

and, 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

identified himself in order to prevent being charged with several other crimes he

had committed during the two weeks before his arrest, the district court did not

clearly err in assessing the criminal-history point. See United States v. Cooper,

274 F.3d 230, 238 (5th Cir. 2001) (citing United States v. Puig-Infante, 19 F.3d

929, 943 (5th Cir. 1994)).

Garcia’s substantive-reasonableness challenge rests on his contentions

that his guidelines range was improperly calculated. He has not shown the

district court erred in calculating that range; and, therefore, he has not overcome

the presumption that his within-guidelines sentence was reasonable. See United

States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

AFFIRMED.

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