USA v. Jose Vega-Alvarado


UNPUBLISHED OPINION FILED. [13-20063 Affirmed ] Judge: EGJ , Judge: HRD , Judge: JWE Mandate pull date is 12/23/2013 for Appellant Jose Efrain Vega-Alvarado [13-20063]

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Case: 13-20063 Document: 00512457187 Page: 1 Date Filed: 12/02/2013 THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 13-20063 Summary Calendar FILED December 2, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE EFRAIN VEGA-ALVARADO, also known as Jose Efrain Vega, also known as Jose E. Vega, also known as Humberto Calderon, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CR-528-1 Before JOLLY, DeMOSS, and ELROD, Circuit Judges. PER CURIAM: * Jose Efrain Vega-Alvarado (Vega) appeals his guilty plea conviction and 56-month sentence for being found unlawfully present in the United States following deportation after conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2). The district court enhanced Vega’s sentence based upon its finding that his prior California conviction for lewd acts with a child 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-20063 Document: 00512457187 Page: 2 Date Filed: 12/02/2013 No. 13-20063 under the age of 14 was a conviction for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). Vega argues that the offense for which he was convicted did not qualify as a crime of violence because the statute under which he was convicted was overly broad. Vega preserved this error; accordingly, we “review the district court’s application of the Guidelines de novo and its factual findings for clear error.” United States v. Neal, 578 F.3d 270, 273 (5th Cir. 2009) (internal quotation marks and citation omitted). In 2001, Vega was convicted under CAL. PENAL CODE ANN. § 288(a). Consistent with the plain-meaning approach we adopted in United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir. 2013) (en banc), his conviction was for the enumerated offense of sexual abuse of a minor and, accordingly, a crime of violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2, comment. (n.1(B)(iii)); United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir. 2005). Vega cannot, therefore, demonstrate that the district court committed error. See Neal, 578 F.3d at 273. Because the above analysis is dispositive, we need not address Vega’s arguments related to the modified categorical approach. The judgment of the district court is AFFIRMED. 2

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