United States v. Macias

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2009
No. 08-41291
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAVIER MEJIA MACIAS, also known as Javier Macias
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-1213-1
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Javier Mejia Macias (Mejia) appeals the 70-month sentence imposed
following his guilty-plea conviction on one count of unlawfully attempting to
reenter the United States, in violation of 8 U.S.C. § 1326(b). Finding no error,
we affirm.
In calculating Mejia’s sentencing guidelines range of 70 to 87 months, the
district court included a 16-level crime-of-violence enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A), based on Mejia’s prior California offense of willful
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41291
infliction of corporal injury. Mejia contends that this offense, which falls under
§ 235(a) of the California Penal Code, does not qualify as a crime of violence.
Thus, he argues, the district court committed reversible procedural error by
imposing the enhancement based on the § 235(a) offense.
We have not had occasion to address whether this particular offense
constitutes a crime of violence and we need not do so now. See United States v.
Ruiz-Arriaga, 565 F.3d 280, 282 (5th Cir. 2009). The district court made it clear
that even if it was incorrect about the application of the enhancement, it would
impose the same 70-month sentence. Our review of the record satisfies us that
the district court properly imposed an alternative nonguidelines sentence, giving
proper consideration to the arguments of the parties and the information in the
presentence report and providing sufficient reasons for the sentence it chose.
See id.; United States v. Bonilla, 524 F.3d 647, 657-59 (5th Cir. 2008), cert.
denied, 129 S. Ct. 904 (2009).
The judgment of the district court is AFFIRMED.
2