* 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should not be published and is not precedent except under the limited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. 07-20728

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

OSCAR LERMA RODRIGUEZ, also known as Jesus Oscar 

Rodriguez-Lerma, also known as Jesus Oscar Rodriguez, also 

known as Oscar Rodriguez-Lerma,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-101-1

Before REAVLEY, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Oscar Lerma Rodriguez (Lerma) appeals the 90-month sentence imposed

following his guilty plea conviction of illegal reentry of a deported alien. He

argues that the district court procedurally erred by failing to calculate the

advisory guidelines range. He also contends that the sentence imposed was

greater than necessary to comply with the factors in 18 U.S.C. § 3553(a), and he

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 2008

Charles R. Fulbruge III

Clerk
No. 07-20728

2

argues for the first time that he should be resentenced because the decisions in

Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128

S. Ct. 558 (2007), broadened the district court’s discretion in imposing a nonguidelines sentence and the 16-level enhancement for having a prior crime of

violence is not empirically supported. 

Following United States v. Booker, 543 U.S. 220 (2005), sentences are

reviewed for reasonableness in light of the sentencing factors in § 3553(a). See

United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall,

128 S. Ct. at 596-97, this court must determine whether the sentence imposed

is procedurally sound, including whether the calculation of the advisory

guidelines range is correct, and whether the sentence imposed is substantively

reasonable. Review is for an abuse of discretion. Id. at 597. “Not all errors in

determining a defendant’s guidelines sentence require reversal.” United States

v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008). We may affirm where the district

court imposes a non-Guidelines sentence that did not “directly result” from an

error in calculating the Guidelines. Id.

At sentencing, the defendant argued that an eight-level enhancement

should apply, and the Government argued thatthePSR correctly calculated that

the 16-level enhancement under U.S.S.G. § 2L1.2 should apply. The district

court considered the two guidelines ranges, rejected both of them, and

permissibly exercised its discretion to impose a non-Guidelines sentence. We

find no reversible procedural error. See United States v. Duhon, F.3d , No.

05-30387, 2008 WL 3843073 at *3 (5th Cir. Aug. 18, 2008); Bonilla, 524 F.3d at

656-57, 559; United States v. Tzep-Mejia, 461 F.3d 522, 526-27 (5th Cir. 2006).

Given Lerma’s extensive criminal record, the district court did not abuse

its discretion in imposing a 90-month sentence. See United States v. Brantley,

537 F.3d 347, 349-50 (5th Cir. 2008). Finally, Lerma has not established plain

error with respect to his assertions that he should be resentenced based on Gall
No. 07-20728

3

and Kimbrough and because the 16-level enhancement was not empirically

supported. See United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir.

2008). 

AFFIRMED.