IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2008
No. 07-40928
Summary Calendar Charles R. Fulbruge III
Clerk
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).
*
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should not be published and is not precedent except under the limited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. 07-40928
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. Campos-
Maldonado, 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 that the district court felt constrained not to 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 court indicate that it would have been inclined not to impose the increase
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No. 07-40928
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.
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