United States v. Nolasco-Gomez ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-20450 September 14, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALEJANDRO NOLASCO-GOMEZ, also
known as Alejandro Gomez Nolasco,
also known as Alejandro Nolasco
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:05-CR-419-ALL
Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Alejandro Nolasco-Gomez pleaded guilty to illegal re-entry and received
a 57-month sentence. He now appeals his sentence. For the reasons that follow,
we affirm.
1. Nolasco-Gomez first argues that the district court erred in its
guideline calculation of 57 to 71 months because that calculation
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-20450
assumed that his prior conviction for indecency with a child was a
crime of violence within the meaning of U.S.S.G. § 4A1.1(f). We
agree. See United States v. Houston, 364 F.3d 243, 247–48 (5th Cir.
2004).
Although we normally remand when the district court errs in
determining the Guideline range, we do not when the sentence
given was not selected “as a result of” the incorrect Guideline
calculation. See United States v. Duhon, 440 F.3d 711, 716 (5th Cir.
2006) (citing 18 U.S.C. § 3742(f)), petition for cert. filed (May 18,
2006) (No. 05-11144). Here, the district court imposed a sentence
that was still within the correctly calculated guideline range and
explained that independent of whether the defendant’s previous
crimes were “crimes of violence,” he would impose the same
sentence based on the circumstances of the defendant’s case. Under
the facts presented here, the district court’s sentence was not given
as a result of the incorrect Guideline calculation and was
reasonable. Id.; see also United States v. Medina-Argueta, 454 F.3d
479, 483 (5th Cir. 2006).
2. Nolasco-Gomez also argues that the “felony and “aggravated felony
provisions” of 8 U.S.C. § 1326(b)(1) and (2) cannot constitutionally
be applied to him. As he concedes, however, this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998).
AFFIRMED.
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