USA v. Ascencion Gandarilla-Bueno


UNPUBLISHED OPINION FILED. [09-51037 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 12/21/2010 for Appellant Ascencion Gandarilla-Bueno [09-51037]

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USA v. Ascencion Gandarilla-Bueno Case: 09-51037 Document: 00511307455 Page: 1 Date Filed: 11/30/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-51037 S u m m a r y Calendar November 30, 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. A S C E N C I O N GANDARILLA-BUENO, 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 Western District of Texas U S D C No. 3:09-CR-1413-1 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* A s c e n c io n Gandarilla-Bueno (Gandarilla) appeals the sentence imposed f o l l o w in g his guilty plea conviction for being unlawfully present in the United S t a te s following removal. For the first time on appeal, Gandarilla argues that t h e district court erred by applying a 16-level enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii) because his prior Nevada conviction for assault with a deadly w e a p o n was not a conviction for a crime of violence. Gandarilla contends that h is Nevada offense was not a crime of violence because the Nevada statute 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-51037 Document: 00511307455 Page: 2 Date Filed: 11/30/2010 No. 09-51037 a llo w s for convictions based upon the present ability to use a deadly weapon as w e ll as the use of a deadly weapon. B e c a u s e Gandarilla did not raise this issue in the district court, we review fo r plain error only. See United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2 0 0 8 ). To show plain error, Gandarilla must show a forfeited error that is clear o r obvious and that affects his substantial rights. See Puckett v. United States, 1 2 9 S. Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion t o correct the error but only if it seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings. See id. T h is court has previously held that Arizona, Texas, and Tennessee a g g r a v a t e d assault offenses qualified as generic aggravated assault offenses, m a k in g them crimes of violence under 2L1.2. See United States v. G u ille n -A lv a r e z , 489 F.3d 197, 199-201 (5th Cir. 2007); United States v. MungiaP o r tillo , 484 F.3d 813, 815-17 (5th Cir. 2007); United States v. Peraza-Chicas, 2 5 4 F. App'x 399, 401-405 (5th Cir. 2007). The Nevada statute under which G a n d a r illa was convicted, NEV. REV. STAT. 200.471(1)(a)(2) and (2)(b), is s u b s t a n t ia lly similar to the Arizona, Texas, and Tennessee aggravated assault s t a t u t e s this court has previously considered. The provision allowing for a c o n v ic t io n based upon the present ability to use a deadly weapon is a "minor d iffe r e n c e " that does not clearly remove the Nevada offense "from the family of o ffe n s e s commonly known as aggravated assault.'" Mungia-Portillo, 484 F.3d at 8 1 7 . Therefore, the district court did not commit plain error by applying the en h a n cem en t. G a n d a r illa also argues that the enhancement was improper because the in d ic t m e n t and judgment from his Nevada conviction were not before the district c o u r t. This argument is refuted by the record as the information and judgment fr o m the Nevada conviction were exhibits to the presentence report. A F F IR M E D . 2

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