USA v. Jose Martinez

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UNPUBLISHED OPINION FILED. [09-20779 Affirmed ] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010 for Appellant Jose Luis Rodriguez Martinez; granting motion for summary affirmance filed by Appellant Mr. Jose Luis Rodriguez Martinez [6560313-2] [09-20779]

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USA v. Jose Martinez ase: 09-20779 C Document: 00511274433 Page: 1 Date Filed: 10/26/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-20779 C o n fe r e n c e Calendar October 26, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J O S E LUIS RODRIGUEZ MARTINEZ, also known as Jose Luis Rodriguez, also k n o w n as Jose Luis Rodriguez-Martinez, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-339-1 B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* J o s e Luis Rodriguez Martinez (Rodriguez) appeals the sentence imposed fo llo w in g 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 c r im e of violence enhancement based on his prior Texas conviction for sexual a s s a u lt of a child, which is a violation of Texas Penal Code 22.011(a)(2). He a r g u e s that this conviction does not constitute the enumerated offense of sexual 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-20779 Document: 00511274433 Page: 2 Date Filed: 10/26/2010 No. 09-20779 a b u s e of a minor or statutory rape under the Guidelines because an offense u n d e r 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 a ffir m a n c e to preserve the issue for appeal. A s Rodriguez concedes, his argument is foreclosed by United States v. C a s t r o - G u e v a r r a , 575 F.3d 550 (5th Cir.), cert. denied, 130 S. Ct. 649 (2009). Accordingly, his motion for summary affirmance is GRANTED and the judgment o f the district court is AFFIRMED. 2

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