     Case: 10-10239 Document: 00511364537 Page: 1 Date Filed: 01/28/2011




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

                                                 FILED
                                                                          January 28, 2011
                                     No. 10-10239
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTONIO GONZALEZ-MOLINA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:08-CR-132-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Antonio Gonzalez-Molina pleaded guilty to illegal
reentry after deportation and was sentenced to 57 months in prison.                       We
remanded for resentencing, and the district court reimposed the same sentence
after taking evidence showing that Gonzalez-Molina had previously been
convicted of a “crime of violence.” See United States v. Gonzalez-Molina, 353
F. App’x 959, 960 (5th Cir. 2009). Gonzalez-Molina appeals again.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-10239 Document: 00511364537 Page: 2 Date Filed: 01/28/2011

                                  No. 10-10239

      Gonzalez-Molina now asserts, for the first time, that his case should be
remanded yet again so that the district court can resentence him in light of a
recent guidelines amendment that took effect on November 1, 2010, after his
resentencing and after briefing was completed. Amendment 742 eliminated
criminal history points based on “recency,” that is, the temporal proximity of the
offense of conviction to a prior term of imprisonment.        See United States
Sentencing Commission, Guidelines Manual, Supp. to Appendix C, Amendment
742, pp. 354-56 (Nov. 1, 2010) (amending § 4A1.1(e)). Amendment 742 is not
retroactive because it is not listed as a retroactive amendment in § 1B1.10(c).
See § 1B1.10(a) & (c), p.s.; United States v. Drath, 89 F.3d 216, 218 (5th Cir.
1996). Gonzalez-Molina contends that the district court should be allowed on
remand to reconsider its application of the sentencing factors of 18 U.S.C.
§ 3553(a) in light of the Sentencing Commission’s decision to eliminate recency
points. The gravamen of his contention is that his sentence is unreasonable in
light of the Sentencing Commission’s “change of position.”
      Although the Sentencing Commission’s reasoning was not available to
support a challenge to the recency point at Gonzalez-Molina’s original sentencing
or on the first appeal, such a challenge could have been made pursuant to
§ 3553(a) and Kimbrough v. United States, 552 U.S. 85 (2007), which held that
a court may vary from the advisory guidelines range based on policy
considerations or disagreements with the Guidelines. Because Gonzalez-Molina
failed to raise this issue in his two sentencing proceedings or his prior appeal,
his claim is barred by the mandate rule. See United States v. Pineiro, 470 F.3d
200, 205 (5th Cir. 2006); United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.
1998). In addition, a substantive guidelines amendment that takes effect after
sentencing “may not be considered on direct appeal.” United States v. Huff, 370
F.3d 454, 466 (5th Cir. 2004).      As Gonzalez-Molina raises no cognizable
challenge to the district court’s judgment on resentencing, the judgment of the
district court is AFFIRMED.

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