United States v. Walter Salgado-Rosales , 691 F. App'x 175 ( 2017 )

Case: 16-10461 Document: 00514042552 Page: 1 Date Filed: 06/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10461 FILED
Summary Calendar June 21, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WALTER JAVIER SALGADO-ROSALES,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-262-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Walter Javier Salgado-Rosales pleaded guilty to
illegal reentry following deportation and was sentenced to 63 months of
imprisonment. He contends on appeal that the district court wrongly assessed
a 16-level enhancement under U.S.S.G. § 2L1.2 based on his prior conviction
for a crime of violence. Salgado-Rosales did not preserve this issue in the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10461
district court so our review is for plain error. See Puckett v. United States, 556
U.S. 129, 134-35 (2009).
The government has the burden of proving “by a preponderance of the
relevant and sufficiently reliable evidence the facts necessary to support the
adjustment.” United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir.
1997) (internal quotation marks and citation omitted). Salgado-Rosales
maintains that the state court records offered by the government in the district
court are inconsistent as to the identity of his prior offense and thus are not
determinative of whether he was convicted of a crime of violence. He argues
that, although the records all state that he was convicted of aggravated assault
under Texas Penal Code § 22.02, which is a crime of violence, a notation in the
amended judgment about the degree of the offense suggests that his conviction
might have been for simple assault under Texas Penal Code § 22.01, which is
not a crime of violence. See United States v. Fierro-Reyna, 466 F.3d 324, 327-
28 (5th Cir. 2006); United States v. Guillen-Alvarez, 489 F.3d 197, 200-01 (5th
Cir. 2007).
To the extent that the instant claim does not involve an issue of fact that
cannot constitute plain error, see United States v. Rodriguez, 602 F.3d 346, 361
(5th Cir. 2010), the records are sufficiently reliable to establish that Salgado-
Rosales was convicted under § 22.02. The initial and amended judgments are
unambiguous as to the nature of the offense and the statute of conviction and
no state court record contains an express reference to any other offense or
statute. Salgado-Rosales’s contention that the amended judgment reflects the
possibility that his offense was reduced to simple assault under § 22.01 is
speculative and finds no support in the record. The documents instead reflect
that the amended judgment contains a typographical error. As Salgado-
Rosales has failed to show a clear or obvious error in the district court’s
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No. 16-10461
conclusion that he committed a crime of violence, he has failed to show that
the district court plainly erred. See Puckett, 556 U.S. at 135.
Salgado-Rosales further contends that his case should be remanded for
resentencing to enable the district court to consider whether a lesser sentence
is appropriate in light of a November 2016 amendment to § 2L1.2. He asserts
that the amendment, which was not in effect at the time of his sentencing, has
rendered his sentence excessive. He failed to raise this contention in the
district court, so we review for plain error. See Puckett, 556 U.S. at 134-35.
The district court appropriately applied the Sentencing Guidelines that
were in effect at the time of sentencing. See United States v. Rodarte-Vasquez,
488 F.3d 316, 322 (5th Cir. 2007). The court did not plainly err by not
considering pending or intervening amendments to the Guidelines. See United
States v. Garcia-Carrillo, 749 F.3d 376, 379 (5th Cir. 2014). Salgado-Rosales
is not entitled to resentencing based on the amendments. See United States v.
Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998).
The judgment of the district court is AFFIRMED.
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