     Case: 09-40537     Document: 00511029314          Page: 1    Date Filed: 02/18/2010




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

                                                  FILED
                                                                          February 18, 2010
                                     No. 09-40537
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHN GILBERT RUBIO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-27-1


Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        John Gilbert Rubio pleaded guilty to an indictment charging him with
being a felon in possession of a firearm. Rubio contends that his sentence is
procedurally unreasonable because there was insufficient evidence to support
the district court’s cross-reference to U.S.S.G. § 2A2.2, the aggravated assault
guideline. He also contends that his sentence is procedurally unreasonable
because the district court erred in adjusting his offense level for “more than
minimal planning,” the district court did not consider a departure under

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40537

U.S.S.G. § 4A1.3 before imposing a non-guideline variance, and the district court
failed to provide an adequate explanation for the sentence imposed.
      Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007), this court first
determines whether the district court committed any procedural errors, “such
as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence--including an explanation for any deviation from the Guidelines
range.” If the district court’s decision is procedurally sound, this court will
“consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard . . . tak[ing] into account the totality of the
circumstances.” Id. In exercising this bifurcated process, the district court’s
application of the Guidelines is reviewed de novo and its factual findings for
clear error. United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009).
      A review of the record indicates that the application of the cross-reference
to the aggravated assault guideline and the adjustment for “more than minimal
planning” are plausible in light of the record as a whole. See United States v.
Brown, 470 F.3d 1091, 1094 (5th Cir. 2006); United States v. Clements, 73 F.3d
1330, 1341 (5th Cir. 1996). Additionally, Rubio’s argument that his sentence is
procedurally unreasonable because the district court failed to consider § 4A1.3,
which applies only to departures based on unrepresentative criminal history and
not non-guideline variances, is unavailing. See United States v. Mejia-Huerta,
480 F.3d 713, 723 (5th Cir. 2007). Moreover, a review of the record does not
support Rubio’s argument that the district court failed to consider his mental
health history when imposing his 108-month sentence. The district court’s
reasons were adequate, see United States v. Bonilla, 524 F.3d 647, 658 (5th Cir.
2008), cert. denied, 129 S. Ct. 904 (2009), and Rubio has failed to establish that
the district court’s reasons constitute procedural error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192

                                        2
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                                No. 09-40537

(2009).   Further, the district court’s upward variance from the guideline
maximum of 71 months to a sentence of 108 months was not unreasonable. See
United States v. Brantley, 537 F.3d 347, 348-50 (2008); United States v. Herrera-
Garduno, 519 F.3d 526, 530-32 (5th Cir. 2008). Rubio has not shown that the
degree of his variance was an abuse of discretion. See Gall, 552 U.S. at 51.
Accordingly, the district court’s judgment is AFFIRMED.




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