United States v. Javier Lopez-Garcia

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 30, 2020
• Docket: 19-10300
• Status: Unpublished

Opinion

Case: 19-10300 Document: 00515364036 Page: 1 Date Filed: 03/30/2020

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

FILED No. 19-10300 March 30, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER LOPEZ-GARCIA,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18-CR-342-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges. PER CURIAM: * Javier Lopez-Garcia appeals the sentence imposed on his conviction of illegal reentry into the United States. The district court varied upward from the guidelines range and sentenced Lopez-Garcia to 60 months of imprisonment, an upward variance from his guidelines range of 24 to 30 months. Lopez-Garcia argues the district court sentenced him based in part on

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-10300 Document: 00515364036 Page: 2 Date Filed: 03/30/2020

No. 19-10300

a clearly erroneous finding that he attempted to evade arrest by driving his van into one of the vehicles of the arresting agents. We review the district court’s factual findings for clear error. See United States v. Davis, 754 F.3d 278, 284 (5th Cir. 2014). “A factual finding is not clearly erroneous if it is plausible in light of the record as a whole.” Id. We give particular deference to credibility determinations in sentencing hearings. Id. at 285 (citation omitted). Here, the district court’s conclusion that Lopez- Garcia attempted to evade arrest by reversing his van into one of the vehicles of the arresting agents was supported by ICE and DHS records describing the circumstances of the collision. The district court also questioned Lopez-Garcia at sentencing about his contention that he moved his van in order to avoid another approaching law-enforcement vehicle. In light of all the evidence, including the testimony, the district court found that Lopez-Garcia was attempting to evade arrest. Considering the same evidence, we conclude Lopez-Garcia has not shown that the district court clearly erred. AFFIRMED.