USA v. Brenes Espinoza-Lazo

Filing

UNPUBLISHED OPINION FILED. [09-30512 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 11/29/2010 for Appellant Brenes Espinoza-Lazo [09-30512]

USA v. Brenes Espinoza-Lazo Case: 09-30512

Document: 00511285949 Page: 1 Date Filed: 11/05/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30512 S u m m a r y Calendar November 5, 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. B R E N E S ESPINOZA-LAZO, D e fe n d a n t -A p p e lla n t

A p p e a ls from the United States District Court fo r the Western District of Louisiana U S D C No. 2:08-CR-104-1

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* B r e n e s Espinoza-Lazo appeals his sentence following his guilty-plea c o n v ic t io n for illegal reentry after deportation. He argues that the district court p la in ly erred by relying on only the presentence report to conclude that one of h is prior convictions was a crime of violence warranting a 16-level sentence e n h a n c e m e n t pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because Espinoza-Lazo d id not object in the district court to the application of the 16-level enhancement,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-30512 Document: 00511285949 Page: 2 Date Filed: 11/05/2010 No. 09-30512 w e review this issue for plain error. See United States v. Mondragon-Santiago, 5 6 4 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). A district court may not rely on the PSR's characterization of a prior o ffe n s e . United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). However, we previously granted the Government's motion to supplement the a p p e l la te record with certified state court records of Espinoza-Lazo's prior o ffe n s e . The indictment and judgment show that Espinoza-Lazo was convicted o f burglary of a habitation with intent to commit theft, a violation of Texas Penal C o d e § 30.02(a)(1). We have previously held that such a conviction qualifies as a crime of violence for purposes of a § 2L1.2(b)(1)(A)(ii) enhancement. United S ta te s v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005). B e c a u s e the record as supplemented supports the district court's d e t e r m in a t io n that Espinoza-Lazo had a prior conviction that warranted a p p lic a t i o n of the 16-level enhancement, he has not shown that the district c o u r t's error in relying on the PSR affected his substantial rights. See United S ta t e s v. Martinez-Cortez, 988 F.2d 1408, 1415-16 & n.37 (5th Cir. 1993). Accordingly, Espinoza-Lazo has not established plain error. See Puckett v. U n ite d States, 129 S. Ct. 1423, 1429 (2009). A F F IR M E D .

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