USA v. Olga Arrellano-Lopez

Filing

UNPUBLISHED OPINION FILED. [12-20421 Affirmed ] Judge: JES , Judge: ECP , Judge: SAH Mandate pull date is 04/30/2013 for Appellant Olga Arrellano-Lopez [12-20421]

Case: 12-20421

Document: 00512202421

Page: 1

Date Filed: 04/09/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
April 9, 2013

No. 12-20421
Summary Calendar

Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OLGA ARRELLANO-LOPEZ, also known as Olga Arellano,
Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-153-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Olga Arrellano-Lopez (Arrellano) appeals the sentence imposed following
her guilty plea conviction for being unlawfully present in the United States
following removal. Arrellano argues that the district court erred by applying a
16-level

enhancement

under

United

States

Sentencing

Guidelines

§ 2L1.2(b)(1)(A)(ii) based on a prior conviction for a crime of violence. She
maintains that her Texas conviction for kidnapping under TEX. PENAL CODE
§ 20.03(a) was not a conviction for a crime of violence because TEX. PENAL CODE
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-20421
§ 20.03(a) does not have as an element the use, attempted use, or threatened use
of force and because TEX. PENAL CODE § 20.03(a) does not comport with the
contemporary, generic offense of kidnapping. We review the district court’s
interpretation or application of the Guidelines de novo, and its factual findings
for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
In United States v. Garcia-Gonzalez, 168 F. App’x 564, 565 (5th Cir. 2006),
we held that “[t]he elements of the Texas kidnapping offense are consistent with
the ordinary, contemporary, and common understanding of the term as defined
by Black’s Law Dictionary,” and we determined that the application of a 16-level
enhancement under § 2L1.2(b)(1)(A)(ii) based upon a conviction under TEX.
PENAL CODE § 20.03(a) was not plain error. In a subsequent published opinion,
we held that a conviction under a nearly identical New York kidnapping statute
was a conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii). United States
v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th Cir. 2007). We have also described
Garcia-Gonzalez as “an unpublished case which held that the enumerated
offense of ‘kidnapping’ included a Texas statute that was nearly identical to the
New York statute and likewise lacked the requirement of risk of injury or
involuntary servitude.” United States v. Moreno-Florean, 542 F.3d 445, 453 (5th
Cir. 2008).
Arrellano acknowledges the opinions in Garcia-Gonzalez and MorenoFlorean. She asserts that Garcia-Gonzalez is not controlling because that case
was reviewed under the plain error standard and because the opinion was
unpublished. She maintains that this court misconstrued Garcia-Gonzalez in
Moreno-Florean for the same reasons.
While Garcia-Gonzalez is an unpublished opinion, Iniguez-Barba and
Moreno-Florean are published opinions that resolve this issue against Arrellano.
See Iniguez-Barba, 485 F.3d at 791-93; Moreno-Florean, 542 F.3d at 453. As
Arrellano has not shown the existence of an intervening statutory change,
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Supreme Court decision, or en banc decision of this court, we must follow
Iniguez-Barba and Moreno-Florean. See United States v. Snarr, 704 F.3d 368,
402 n.21 (5th Cir. 2013).
AFFIRMED.

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