     Case: 09-10539   Document: 00511267235   Page: 1   Date Filed: 10/19/2010




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

                                                 FILED
                                                                October 19, 2010
                                No. 09-10539
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

MANUEL MENDOZA,

                                           Defendant-Appellant


                  Appeal from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:08-CR-285-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Manuel Mendoza appeals the 120-month, within-guidelines sentence
imposed after he pleaded guilty to being a felon in possession of a firearm. The
presentence report (PSR) assigned Mendoza a base offense level of 20 based on
U.S.S.G. § 2K2.1(a)(4)(A), which provides for that offense level if the instant
offense was committed subsequent to a conviction for a “crime of violence.”
§ 2K2.1(a)(4)(A). At sentencing, Mendoza requested that the district court vary



       *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
   Case: 09-10539    Document: 00511267235 Page: 2        Date Filed: 10/19/2010
                                 No. 09-10539

downward from the guidelines based, inter alia, on the Government’s refusal to
move for the third point for acceptance of responsibility, pursuant to § 3E1.1(b),
because Mendoza refused to waive his appellate rights.
      Mendoza argues that the district court erred (1) by ruling that his prior
Texas conviction for evading arrest with a vehicle was a crime of violence; (2) by
concluding that it lacked the authority to vary from the Guidelines based on the
Government’s refusal to move for the third point for acceptance of responsibility;
and (3) by running Mendoza’s sentence consecutive to state sentences that were
not yet imposed.
      After Booker, this court reviews whether a sentence is reasonable under
an abuse-of-discretion standard. United States v. Herrera-Garduno, 519 F.3d
526, 529 (5th Cir. 2008). “In performing this review, [this court] ‘first ensure[s]
that the district court committed no significant procedural error’ and ‘then
consider[s] the substantive reasonableness of the sentence imposed.”               Id.
(quoting Gall, 128 S. Ct. at 597). “A discretionary sentence imposed within a
properly calculated guidelines range is presumptively reasonable.”         United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.). We review the
district court’s interpretation or application of the Guidelines de novo and its
factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
      With regard to Mendoza’s first argument, a crime of violence is defined,
inter alia, as any offense punishable by imprisonment for a term exceeding one
year and that”otherwise involves conduct that presents a serious potential risk
of physical injury to another,” also known as “the residual clause.” § 4B1.2(a)(1);
§ 2K2.1, comment. (n.1). Mendoza’s argument that his Texas conviction for
evading arrest with a vehicle is not a crime of violence under § 4B1.2 is
foreclosed by United States v. Harrimon, 568 F.3d 531, 533-37 (5th Cir.), cert.
denied, 130 S. Ct. 1015 (2009).



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   Case: 09-10539   Document: 00511267235 Page: 3        Date Filed: 10/19/2010
                                No. 09-10539

      With regard to Mendoza’s second argument, the district court’s decision
not to grant a variance does not indicate that it believed that it lacked the
authority to impose a non-guidelines sentence. The totality of the circumstances
reveals that the district court denied the requested variance because it believed
that a within-guidelines sentence was appropriate. See United States v. Newson,
515 F.3d 374, 379 (5th Cir. 2008). Accordingly, the district court did not err by
denying the requested variance.
      Finally, Mendoza concedes that his third argument is foreclosed by United
States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other
grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which
held that a district court may order a term of imprisonment to run consecutively
with an unimposed state sentence.
      AFFIRMED.




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