     Case: 10-20787     Document: 00511585680         Page: 1     Date Filed: 08/29/2011




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

                                                                            FILED
                                                                          August 29, 2011
                                     No. 10-20787
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE LUIS TRINIDAD GOMEZ, also known as Josue Virgilio Verdugo, also
known as Jose Luis Trinidad-Gomez, also known as Luis Gomez, also known as
Jose Luis Gomez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-489-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Jose Luis Trinidad Gomez appeals his 96-month sentence, following his
guilty-plea conviction for illegal reentry into the United States. He contends the
district court: procedurally erred by relying on clearly erroneous facts to deny
his request for a lesser sentence; and erred by denying, as untimely, his motion
for credit for time spent in immigration custody.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20787    Document: 00511585680      Page: 2    Date Filed: 08/29/2011

                                  No. 10-20787

      Although post-Booker, 543 U.S. 220 (2005), 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
advisory Guidelines sentencing range for use in deciding on the sentence to
impose. Gall v. United States, 552 U.S. 38, 46-51 (2007). In that respect, its
application of the Guidelines is reviewed de novo; its findings of fact, only for
clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). Our court first examines whether the district court committed any
significant procedural error. Gall, 552 U.S. at 51. If the district court’s decision
is procedurally sound, our court will then “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard”.
Id. Gomez does not claim his sentence is substantively unreasonable.
      Regarding Gomez’ contention that the district court committed procedural
error, he is correct that the court initially relied on facts from the wrong
paragraph of the presentence investigation report to explain its denial of his
request for a lesser sentence. After counsel pointed out the error, however, the
court corrected itself by providing sufficient reasons, for denying the request and
for selecting Gomez’ sentence, that were not based on erroneous facts.
Accordingly, Gomez has not shown that the district court relied on clearly-
erroneous facts. Therefore, the court did not abuse its discretion.
      We need not address Gomez’ contention that the court erred by denying
as untimely his motion for credit for time spent in immigration custody. Instead,
we affirm the court’s denial on an alternate ground:           the court was not
authorized to grant such credit. See United States v. Wilson, 503 U.S. 329, 335
(1992) (although defendant is entitled to credit for time spent in “official
detention” prior to being received in federal custody, it is the Attorney General
after sentencing, not the court, who is authorized to compute such credit); Leal
v. Tombone, 341 F.3d 427, 428 (5th Cir. 2003) (“The Attorney General, through
the Bureau of Prisons . . . , determines what credit, if any, will be awarded to

                                         2
  Case: 10-20787   Document: 00511585680     Page: 3   Date Filed: 08/29/2011

                                No. 10-20787

prisoners for time spent in custody prior to the commencement of their federal
sentences.” (citation omitted)); Emery v. Johnson, 139 F.3d 191, 195 (5th Cir.
1997) (our court may affirm judgment on any ground supported by record).
      AFFIRMED.




                                      3
