                                               United States Court of Appeals
                                                        Fifth Circuit
                                                     F I L E D
         UNITED STATES COURT OF APPEALS
                                                     October 18, 2006
                  FIFTH CIRCUIT
                                                 Charles R. Fulbruge III
                     ____________                        Clerk
                     No. 05-31091
                     ____________


UNITED STATES OF AMERICA,


                        Plaintiff-Appellee,

versus


VALENTINO GONZALES,


                        Defendant-Appellant.

                     ____________

                     No. 05-31142
                     ____________


UNITED STATES OF AMERICA,


                        Plaintiff-Appellee,

versus


LUIS RIOJAS-LEIJA,


                        Defendant-Appellant.
                            Appeals from the United States District Court
                               For the Western District of Louisiana
                                   USDC No. 1:04-CR-10022-4



Before GARZA, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

        There are three issues raised on this appeal: one related to Valentino Gonzales and two related

to Luis Riojas-Leija. All issues are related to the sentencing of the defendants for their attempted

murder of another inmate while in a federal detention facility. 18 U.S.C. § 1117 (2005). We affirm

the district court’s ruling on all three issues.

        First, Gonzales alleges that the district court improperly interpreted the sentencing guidelines.

Because he was serving a term of imprisonment when the instant offense occurred, the presentence

investigation report (PSI) stated that “the sentence for the instant offense shall be imposed to run

consecutively to the undischarged term of imprisonment.” See UNITED STATES SENTENCING

GUIDELINES 5G1.3(a) (2005). Defense counsel did not object to the PSI’s statement but did request

the district judge consider imposing a concurrent sentence. The district court responded to this

request: “I’m not doing anything that’s concurrent. It would have to be successive.”

        Gonzales now argues that the district court committed a clear error by treating U.S.S.G.

5G1.3(a) as mandatory rather than advisory and by failing to consider the 18 U.S.C. § 3553(a) factors

when imposing the consecutive sentence.



        *
         Pursuant to Fifth Circuit Rule 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 Fifth Circuit
Rule 47.5.4.

                                                   -2-
        There is no evidence to support these allegations. During the sentencing proceeding, the

district judge stated that “the guidelines are permissive now, rather than mandatory . . . . And we

further have considered the factors in 18 U.S.C. Section 3553, and there are no other compelling

considerations not to apply the provisions of the guidelines.” These statements make clear that the

district court fully understood the advisory nature of the guidelines and did consider the § 3553(a)

sentencing factors.

        Next, Riojas asserts that the district court’s computation of his criminal history is erroneous

because the court counted two related offenses as unrelated and assigned three criminal history points

for each offense. We review a criminal history computation de novo. United States v. Arviso-Mata,

442 F.3d 382, 384 (5th Cir. 2006).

        The two offenses in question are burglary with intent to commit theft and retaliation, both

under Texas state law. The burglary occurred when Riojas broke into a neighbor’s shed and stole

the neighbor’s scooter. Later that day, Riojas was arrested several blocks away while in possession

of the stolen scooter. Immediately following the arrest, the police took Riojas to the neighbor’s

residence for the purposes of identification. During the identification, Riojas threatened harm to the

neighbor if she did not drop the charges. These threats are the basis for the retaliation offense.

        The sentencing guidelines unequivocally state that because the police arrested Riojas after the

burglary occurred but before the retaliation occurred, the two offenses are not related for the

purposes of criminal history computation. U.S.S.G. § 4A1.2 cmt. background n. 3 (2005) (“Prior

sentences are not considered related if they were for offenses that were separated by an intervening

arrest.”).

        The guidelines go on to state that if the offenses were not separated by an intervening arrest,


                                                 -3-
then the court should consider whether the offenses were part of the same occasion, common scheme

or plan, or consolidated for trial or sentencing. Id. Because the offenses in this case were separated

by an intervening arrest, we do not need to consider these standards for relatedness.

        Finally, Riojas challenges the district court’s imposition of a $3,000 fine. Because Riojas did

not object with specificity during the sentencing proceeding, we review the imposition of the fine for

plain error. United States v. Williams, 264 F.3d 561, 575 (5th Cir. 2001) (finding a general objection

is insufficient to preserve error); United States v. Navejar, 963 F.2d 732, 734-35 (5th Cir. 1992)

(“The contemporaneous objection rule applies equally to sentencing hearings as to trials.”).

        The sentencing guidelines state, “The court shall impose a fine in all cases, except where the

defendant establishes that he is unable to pay and is not likely to become able to pay any fine.”

U.S.S.G. § 5E1.2. In this case, Riojas has not met this standard. Riojas claims that he is under an

order of deportation, which means he cannot be employed in the Federal Prison Industries, and

therefore cannot generate income while serving his sentence. 28 C.F.R. § 345.35(a). But Riojas has

been unable to produce any evidence of a presently outstanding order of deportation. Further, Riojas

was employed prior to his incarceration and has made no showing that he cannot be employed

following his incarceration. As a result, the district judge’s determination that Riojas is able to pay

this fine was not plain error.

        For the foregoing reasons, we AFFIRM the district judge’s sentencing decisions.




                                                 -4-
