United States v. Jose Martinez

Case: 09-20779 Document: 00511274433 Page: 1 Date Filed: 10/26/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 26, 2010 No. 09-20779

Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee v.

JOSE LUIS RODRIGUEZ MARTINEZ, also known as Jose Luis Rodriguez, also known as Jose Luis Rodriguez-Martinez,

Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09-CR-339-1

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Luis Rodriguez Martinez (Rodriguez) appeals the sentence imposed following his conviction for illegal reentry after deportation under 8 U.S.C. § 1326. Rodriguez contends that the district court erred by imposing a 16-level crime of violence enhancement based on his prior Texas conviction for sexual assault of a child, which is a violation of Texas Penal Code § 22.011(a)(2). He argues that this conviction does not constitute the enumerated offense of sexual Case: 09-20779 Document: 00511274433 Page: 2 Date Filed: 10/26/2010 No. 09-20779 abuse of a minor or statutory rape under the Guidelines because an offense under § 22.011 can be committed against a victim who is only 16 years of age. Rodriguez concedes that his argument is foreclosed and moves for summary affirmance to preserve the issue for appeal.

As Rodriguez concedes, his argument is foreclosed by United States v. Castro-Guevarra, 575 F.3d 550 (5th Cir.), cert. denied, 130 S. Ct. 649 (2009). Accordingly, his motion for summary affirmance is GRANTED and the judgment of the district court is AFFIRMED.