UNITED STATES of America, Plaintiff-Appellee v. Manuel MENDOZA, Defendant-Appellant, 397 F. App'x 941

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 downward from the guidelines based, inter alia, on the Government’s refusal to move for the third point for acceptance of responsibility, pursuant to § 3El.l(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^] 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)(l); § 2K2.1, comment, (n.l).

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, — U.S. -, 130 S.Ct. 1015, 175 L.Ed.2d 621 (2009). 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 unim-posed state sentence. AFFIRMED. 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.