United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 29, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41162
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERT ANDREW RUBIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-218
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Having pleaded guilty, Gilbert Andrew Rubio challenges his
120-month sentence for being a felon in possession of a firearm.
Rubio argues that his sentence must be vacated because the
evidence does not support the district court’s finding that
Rubio possessed the firearm at issue during the commission of an
aggravated robbery. Rubio also argues that the district court
erred in concluding that a prior California conviction was a
crime of violence under U.S.S.G. § 4B1.1; however, he
*
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this opinion should not be published and is not precedent except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.
No. 06-41162
-2-
acknowledges that this issue will be irrelevant to his sentence
and need not be resolved if the record supports the aggravated
robbery finding.
Our review of the record shows that the evidence supports
the district court’s determination that Rubio used the weapon
involved in his offense to commit an aggravated robbery. United
States v. Harper, 448 F.3d 732, 735 n.2 (5th Cir. 2006); United
States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994). We find
no error in the district court’s computation of Rubio’s advisory
Sentencing Guidelines. United States v. Villanueva, 408 F.3d
193, 202-03 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268
(2005). As these findings show that there is no error in Rubio’s
sentence, we find it unnecessary to address the issue whether his
prior offense was a crime of violence.
AFFIRMED.