United States v. Oscar Mata-Alvarez ( 2017 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 15-41504
United States Court of Appeals
Fifth Circuit
Conference Calendar FILED
___________________ October 19, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
OSCAR MATA-ALVAREZ,
Defendant - Appellant
_______________________
Appeal from the United States District Court for the
Southern District of Texas, McAllen
_______________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: ∗
We reconsider this case on remand from the Supreme Court in light of
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). Defendant Oscar Mata-
Alvarez did not object to his enhanced sentence below, so we review only for
plain error. See United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016).
∗
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
No. 15-41504
Under this court’s precedent, indecency with a child involving sexual
contact “is a crime of violence because it entails a substantial risk that physical
force may be used against the victim.” United States v. Velazquez-Overa, 100
F.3d 418, 419 (5th Cir. 1996). Given the gravity of Mata-Alvarez’s offense—his
victim was seven-years old—the sentence of 48 months does not seriously
“affect[] the fairness, integrity or public reputation of judicial proceedings.” See
United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)). Accordingly, we hold that the district
court did not plainly err.
IT IS ORDERED that the appellant’s opposed motion to summarily
vacate the district court judgment of sentence is DENIED.
IT IS FURTHER ORDERED that the appellant’s opposed motion to
remand the case to the district court for resentencing in light of Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562 (2017) is DENIED.
IT IS FURTHER ORDERED that the appellant’s opposed motion to issue
the mandate forthwith is DENIED.
Certified as a true copy and issued
as the mandate on Nov 07, 2017
Attest:
Clerk, U.S. Court of Appeals, Fifth Circuit
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