     Case: 09-10944     Document: 00511183875          Page: 1    Date Filed: 07/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 23, 2010
                                     No. 09-10944
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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 guilty-
plea 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.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing 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-of-
violence enhancement.       See United States v. Garcia-Mendez, 420 F.3d 454,
456-57 (5th Cir. 2005) (holding violation of T EX. P ENAL C ODE § 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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