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

                                                                  FILED
                                                                February 10, 2009
                               No. 08-10529
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JESUS CORDOVA-SAAVEDRA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 6:07-CR-64-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jesus Cordova-Saavedra pleaded guilty to illegal reentry after deportation
and was sentenced to 75 months of imprisonment and three years of supervised
release. He challenges the reasonableness of his non-Guideline sentence as well
as the district court’s order that the sentence be served consecutively to any
sentence to be imposed in a case that was pending in state court. We AFFIRM.




      *
      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should not be published and is not precedent except under the limited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. 08-10529

                              I. BACKGROUND
        Cordova-Saavedra was first deported from the United States in 1994. He
re-entered the United States that same year. In 1998 he was discovered in the
United States and prosecuted for illegal re-entry, for which he received a 70
month sentence. After serving his sentence, he was deported to Mexico a second
time.
        Cordova-Saavedra then returned to the United States in 2007, where he
was again discovered by authorities. This third entry into the United States was
the basis of the conviction in the present case. Cordova-Saavedra stipulated that
he knew he was in the country illegally, waived indictment, and pleaded guilty
to illegal re-entry. In addition to his prior conviction for illegal re-entry,
Cordova-Saavedra had eight other prior convictions, some of which were for
felonies. He also had five additional arrests that did not result in conviction.1
        The probation office determined Cordova-Saavedra’s base-offense level to
be 8, pursuant to U.S.S.G. § 2L1.2(a). Pursuant to § 2L1.2(b)(1)(C), 8 levels were
added because he had been previously removed subsequent to a conviction for
an aggravated felony. After three levels were subtracted for acceptance of
responsibility, his total offense level was 13. Based on a criminal history
category of V, the applicable guideline range of imprisonment was 30-37 months.
The district court adopted the findings in the PSR and sentenced Cordova-
Saavedra to 75 months of imprisonment, an upward variance from the range of
30-37 months.      The district court ordered that the sentence be served
consecutively to any sentence to be imposed in a case that was pending against
Cordova-Saavedra in state court.




        1
        For at least two of the arrests, legal action was taken on the offenses in
the form of pretrial diversion and issuance of a protective order, indicating that
the charges were supported by some evidence.

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                                II. DISCUSSION
      Cordova-Saavedra challenges the reasonableness of his non-guideline
sentence as well as the district court’s order that the sentence be served
consecutively to any sentence to be imposed in a case that was pending against
Cordova-Saavedra in state court.
A.    Reasonableness of Sentence
      We review sentences for reasonableness in light of the sentencing factors
of 18 U.S.C. § 3553(a). United States v. Booker, 543 U.S. 220, 261 (2005).
Sentences inside or outside the advisory guidelines range are reviewed under the
abuse-of-discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).
      1.      Consideration of Prior Arrests
      Cordova-Saavedra argues that his sentence is unreasonable because the
district court improperly considered his prior arrests. He contends that the 18
U.S.C. § 3553(a) factors do not support consideration of an arrest record.
Compare United States v. Jones, 444 F.3d 430, 434 (5th Cir. 2006), with United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir.), cert. denied, 129 S. Ct.
625 (2008).
      Cordova-Saavedra did not object to the district court’s consideration of his
prior arrests, relying instead on a general objection to the “reasonableness” of
the sentence. His general objection did not serve the purpose of the objection
requirement because it did not provide the district court the opportunity to
address the perceived error. See United States v. Hernandez-Martinez, 485 F.3d
270, 272-73 (5th Cir.), cert. denied, 128 S. Ct. 325 (2007); United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). In the
present case, an objection to the district court’s passing reference to Cordova-
Saavedra’s arrests would have provided the district court the opportunity to
explain to what extent, if any, it relied on those arrests in calculating the 75
month sentence. Having failed to provide the district court that opportunity, we
will review for plain error. Id. To prevail on plain-error review, a defendant

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must show a clear or obvious error that affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732-35 (1993).
      Under the plain error standard of review we need not decide in the present
case whether arrests, standing alone, may be factored into a non-Guidelines
sentence. The record as a whole indicates that it is not reasonably probable that
the arrests resulted in a longer sentence for Cordova-Saavedra. See Jones, 444
F.3d at 436 (affirming Guidelines sentence where district court improperly
considered prior arrests). During the sentencing hearing, the district court
noted that Cordova-Saavedra had nine convictions, four of which were serious
felonies, and five other arrests. It also noted that Cordova-Saavedra had a prior
conviction in 1998 for illegal reentry for which he was sentenced to 70 months.
But the district court did not rely on the arrests when explaining why the
sentence of 75 months was warranted. Rather, the district court stated:
      Specifically the Court has considered the nature and circumstances
      of this offense and the history and characteristics of this defendant.
      I’ve also considered the need for this sentence to reflect the
      seriousness of this offense and to promote respect for the law. I
      believe this sentence needs to be greater than what was imposed back
      in 1998 for the same offense.
      Furthermore, the Court believes this sentence needs to afford
      adequate deterrence to this defendant and to protect the public from
      further crimes of the defendant. Again, I will note that he has nine
      convictions on his criminal record.
(Emphasis added). The record as a whole demonstrates that the district court
based its 75 month sentence not on five arrests, but on Cordova-Saavedra’s
failure to be deterred by his prior 70 month sentence for the same crime and his
nine prior convictions, some of which were felony convictions.
      2.    Consideration of Prior 70-Month Sentence
      Cordova-Saavedra argues that the district court’s sentence was
substantively unreasonable because it applied its own minimum sentence for
offenders who commit more than one offense of the same kind. His argument is


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based on the district court’s statement that “this sentence needs to be greater
than what was imposed back in 1998 for the same offense.” He contends that,
in effect, the district court had defied Congressional policy and purported to
establish a separate minimum sentence. He argues that the district court may
not treat the defendant’s prior sentence as a presumptive minimum.
      Cordova-Saavedra’s argument that the district court was in effect setting
its own mandatory minimum as a general policy rather than choosing a sentence
specific to Cordova-Saavedra is not supported by the record. The district court
stated that it had considered the “history and characteristics of this defendant.”
The district court considered the need for the sentence to reflect the seriousness
of the offense and to promote respect for the law. The district court stated that
this sentence was needed to deter “this defendant” and to protect the public from
further crimes of “the defendant.” The district court emphasized Cordova-
Saavedra’s nine prior convictions as justification for the 75-month sentence. The
one prior illegal reentry conviction cannot be viewed in isolation from the eight
other prior convictions and the other stated reasons of the district court. The
district court determined that this sentence needed to be higher than Cordova-
Saavedra’s prior sentence of 70 months on the basis of several factors specifically
related to “this defendant.”
      Cordova-Saavedra also argues that the district court’s conclusion that his
sentence needed to be greater than his sentence for the same offense imposed in
1998 in effect subjected him to the sentencing regime that applied in 1998 and
incorporated its flaws. He notes that the Sentencing Commission recognized
that the pre-2001 Guideline gave defendants convicted of aggravated felonies
with vastly different culpability a 16-level enhancement, resulting in
disproportionate penalties.     He argues that the district court failed to
acknowledge this and that the district court’s action in effectively reinstating
this pre-amendment Guideline was unreasonable.



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                                  No. 08-10529

      The guideline calculations under the former version of U.S.S.G. § 2L1.2
that led to Cordova-Saavedra’s sentence of 70 months on his prior illegal reentry
conviction are irrelevant. The prior 70-month sentence kept Cordova-Saavedra
from committing any further crimes during the time he was incarcerated. After
his release and deportation, Cordova-Saavedra again illegally reentered the
United States and committed another crime, in addition to the new illegal
reentry offense. It was not an abuse of discretion for the district court to
conclude, considering Cordova-Saavedra’s criminal history of nine prior
convictions, and the § 3553(a) factors of deterrence, respect for the law, and
protection of the public, that a sentence greater than 70 months was necessary
to achieve those sentencing goals. See Lopez-Velasquez, 526 F.3d at 806-07
(affirming 72-month non-guideline sentence for illegal reentry defendant with
two prior drug convictions, 11 arrests, and seven deportations).
B.    Consecutive Sentences
      Cordova-Saavedra argues that, by ordering his federal sentence to run
consecutively to any future state sentence, the district court improperly applied
18 U.S.C. § 3584(a). He concedes, however, that his argument is foreclosed by
this court’s precedent in United States v. Brown, 920 F.2d 1212, 1216-17 (5th
Cir. 1991), abrogated on other grounds, United States v. Candia, 454 F.3d 468,
472-73 (5th Cir. 2006), which held that a federal court may impose a federal
sentence to run consecutively to an as-yet-imposed state sentence. One panel of
this court may not overrule the decision of a prior panel in the absence of en banc
reconsideration or a superseding Supreme Court decision. United States v.
Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002). Cordova-Saavedra’s argument
is foreclosed by this court’s holding in Brown.
                              III. CONCLUSION
      The sentence is AFFIRMED.




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