USA v. Victor Jimenez-Lopez

Filing

UNPUBLISHED OPINION FILED. [09-40934 Affirmed and Remanded] Judge: FPB , Judge: ECP , Judge: LHS. Mandate pull date is 01/13/2011 for Appellant Victor Javier Jimenez-Lopez; granting motion for summary affirmance filed by Appellee USA [6633048-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6633048-3] [09-40934]

USA v. Victor Jimenez-Lopez Case: 09-40934

Document: 00511330902 Page: 1 Date Filed: 12/23/2010

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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 . 09-40934 S u m m a r y Calendar December 23, 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. V I C T O R JAVIER JIMENEZ-LOPEZ, 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. 2:09-CR-145-1

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* V ic t o r Javier Jimenez-Lopez appeals from his conviction for being illegally p r e s e n t in the United States after having been deported. He contends that his p r io r state conviction for assault with a deadly weapon, although a "crime of v io le n c e " under U.S.S.G. § 2L1.2(b)(1)(A)(ii), was not an "aggravated felony" p u r s u a n t to 8 U.S.C. § 1101(a)(43)(F). He also argues that his prior state c o n v ic t io n for possession of cocaine was not an aggravated felony because it was

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40934 Document: 00511330902 Page: 2 Date Filed: 12/23/2010 No. 09-40934 n o t prosecuted as a recidivist offense. Although he does not challenge the

d is tr ic t court's calculation of the Sentencing Guidelines or its imposition of a s e n te n c e of 57 months, he argues that his case should be remanded to allow the d is t r ic t court to correct the judgment to reflect that he was convicted under 8 U.S.C. § 1326(b)(1). Because Jimenez-Lopez did not raise this argument in the district court, w e review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 3 5 7 , 360-61 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, t h e appellant must show a forfeited error that is clear or obvious and that affects h is substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has the discretion to correct t h e error, but only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. Id. J im e n e z-L op e z's prior conviction for assault with a deadly weapon resulted in a sentence of less than one year of imprisonment; thus, it was not an a g g r a v a t e d felony pursuant to § 1101(a)(43)(F). See Mondragon-Santiago, 564 F .3 d at 368-69. In addition, in light of the Supreme Court's decision in

C a r a c h u r i-R o s e n d o v. Holder, 130 S. Ct. 2577 (2010), his prior conviction for p o s s e s s io n of cocaine does not qualify as an aggravated felony because it was not p r o s e c u t e d as a recidivist offense. Although the district court erred by

s e n te n c in g Jimenez-Lopez pursuant to § 1326(b)(2), the record does not indicate t h a t the error affected Jimenez-Lopez's substantial rights. See MondragonS a n tia g o , 564 F.3d at 369. Therefore, he has failed to demonstrate reversible p la in error. However, we grant the Government's unopposed motion to reform t h e judgment of the district court to indicate that Jimenez-Lopez was convicted u n d e r § 1326(b)(1). See id. A F F I R M E D ; MOTION FOR SUMMARY REFORMATION OF THE J U D G M E N T GRANTED; ALTERNATIVE MOTION FOR EXTENSION OF T IM E TO FILE A BRIEF DENIED. JUDGMENT REFORMED TO INDICATE 2

Case: 09-40934 Document: 00511330902 Page: 3 Date Filed: 12/23/2010 No. 09-40934 T H A T JIMENEZ-LOPEZ WAS SENTENCED PURSUANT TO 8 U.S.C. § 1326(b)(1).

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