USA v. Francisco Zavala-Flores

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USA v. Francisco Zavala-Flores

Doc. 0

Case: 09-40885

Document: 00511192899

Page: 1

Date Filed: 08/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40885 S u m m a r y Calendar August 3, 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. F R A N C I S C O ZAVALA-FLORES, 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. 7:09-CR-597-1

B e fo r e BENAVIDES, PRADO and SOUTHWICK, Circuit Judges. P E R CURIAM:* F r a n c is c o Zavala-Flores appeals his 57 month sentence for being illegally p r e s e n t in the United States following deportation. He argues that the district c o u r t erred in enhancing his criminal history category pursuant to U.S.S.G. § 4A1.1(f) on the ground that three indecency with a child convictions in v io la t io n of TEXAS PENAL CODE § 21.11(a)(2)(A) were crimes of violence for which h e received a single sentence. Zavala-Flores properly concedes that his

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40885

Document: 00511192899 Page: 2 No. 09-40885

Date Filed: 08/03/2010

a r g u m e n t is subject to review for plain error because he did not raise the issue a t sentencing. T o establish plain error, Zavala-Flores must identify a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009). Whether the convictions at issue are crimes o f violence within the meaning of § 4A1.1(f) is an issue of first impression in this c ir c u it . Thus, if error occurred, it was not clear or obvious and does not warrant r e lie f on plain error review. See United States v. Ellis, 564 F.3d 370, 376-78 (5th C ir .), cert. denied, 130 S. Ct. 371 (2009); Puckett, 129 S. Ct. at 1429. AFFIRMED.

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