USA v. Pedro Acuna-Ramirez
UNPUBLISHED OPINION FILED. [16-40452 Affirmed] Judge: EHJ, Judge: JLW, Judge: JWE. Mandate pull date is 02/16/2017 for Appellant Pedro Enrique Acuna-Ramirez [16-40452]
Date Filed: 01/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
UNITED STATES OF AMERICA,
United States Court of Appeals
January 26, 2017
Lyle W. Cayce
Plaintiff - Appellee
PEDRO ENRIQUE ACUNA-RAMIREZ,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-973-1
Before JONES, WIENER, and ELROD, Circuit Judges.
As Pedro Enrique Acuna-Ramirez (“Acuna”) did not preserve his
objection to the district court’s determination that his prior conviction qualified
as an aggravated felony, his claim is subject to plain error review. United
States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th Cir. 2016) (“If an argument
is raised for the first time on appeal, we review for plain error.”). “Under plainerror review, this court may correct a forfeited error in its ‘sound discretion’ on
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 01/26/2017
a showing of (1) an error (2) that is clear or obvious, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Nava, 762 F.3d 451, 452 (5th Cir.
2014) (citing Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United
States v. Olano, 113 S. Ct. 1770, 1776-78 (1993)). “Meeting all four prongs is
difficult, as it should be,” and Acuna fails to do so here. Nava, 762 F.3d at 452
(quoting Puckett, 129 S. Ct. at 1423 (internal quotation marks omitted)). As a
result the district court’s judgement is AFFIRMED.
Acuna pleaded guilty to illegal reentry after a prior removal.
additionally, had a New Jersey aggravated manslaughter conviction prior to
his removal. The conviction was used by the district court to justify a “crime
of violence” enhancement to Acuna’s sentence. At no point did Acuna object.
Acuna now appeals the district court’s determination that the New Jersey
conviction was a crime of violence under 18 U.S.C. § 16 and, therefore, an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
This court need not address all four prongs of plain error review, as
failure on any one prong is failure to show reversible plain error.
The legal error is not plain. Neither party in this case can identify
any authority that determines whether New Jersey aggravated manslaughter
qualifies as a crime of violence under 18 U.S.C. § 16. This court has previously
held that the “lack of binding authority is often dispositive in the plain-error
context[.]” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) (citing
Olano, 113 S. Ct at 1777). There is certainly no binding authority on this
question, and even were this court to accept Acuna’s claim that United States
v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) and United States v. GraciaCantu, 302 F.3d 308 (5th Cir. 2002) suggest error, these cases are not directly
on point and the Supreme Court’s decision in Voisine v. United States,
136 S. Ct. 2272 (2016) further highlights the lack of clear or obvious error. In
Date Filed: 01/26/2017
Voisine, the Supreme Court addressed whether a ban on firearms that applies
to those with misdemeanor convictions for the “use . . . of physical force against
a domestic relation . . . encompasses acts of force undertaken recklessly,” and
concluded that it did. Voisine, 136 S. Ct. at 2282. Similarly in the present case
Acuna asks whether a conviction under a statute with a mens rea of
recklessness meets the standard for a crime of violence—a substantial
likelihood of the use of physical force during the offense. In the absence of
binding precedent, or even clear analogous precedent, this court will not find
plain error in this case.
Even if Acuna could show plain error, he never argues that this
affects fundamental fairness, the fourth prong of the test for plain error review.
This court has previously rejected appeals because appellant failed “to argue
that the alleged error affected the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Caravayo, 809 F.3d 269, 273 (5th Cir.
2015). See, also United States v. Rivera, 784 F.3d 1012, 1018 n. 3 (5th Cir.
2015), reh'g denied, 797 F.3d 307 (5th Cir. 2015) (“We have also refused to
correct plain errors when, as here, the complaining party makes no showing as
to the fourth prong.”). Acuna’s case presents no justification to deviate from
For the foregoing reasons, the judgment of the district court is
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