United States v. Velasquez-Martinez , 331 F. App'x 285 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 3, 2009
No. 08-20643
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RODOLFO VELASQUEZ-MARTINEZ, also known as Rodolfo Martinez, also
known as Rodolfo M Velasquez, also known as Rodolfo Velasquez, also known as
Rodolfo Martinez-Velasquez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-276-1
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Rodolfo Velasquez-Martinez was convicted of one count of illegal reentry
into the United States following conviction of an aggravated felony and was
sentenced to serve 42 months in prison. Velasquez-Martinez appeals his
sentence. Velasquez-Martinez first argues that the district court committed
significant procedural error by imposing a sentence within the pertinent
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20643
guidelines range without giving specific reasons for rejecting his non-frivolous
arguments in favor of a sentence below this range. We review this issue for
plain error due to his failure to present it to the district court. See United States
v. Mondragon-Santiago, 564 F.3d 357, 363-64 (5th Cir. 2009). To show plain
error, Velasquez-Martinez must show a forfeited error that is clear or obvious
and that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423,
1429 (2009). If he makes such a showing, this court has the discretion to correct
the error but will do so only if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.Even if the district court erred by not providing adequate reasons for
rejecting Velasquez-Martinez’s arguments, Velasquez-Martinez still has not
shown that he should receive relief on this claim. This is because Velasquez-
Martinez has failed to show that a more extensive explanation for his sentence
would have resulted in his receiving a different sentence. See
Mondragon-Santiago, 564 F.3d at 362-64. Velasquez-Martinez’s argument that
the district court’s error affected his substantial rights because it hampers our
ability to review the reasonableness of his sentence is unavailing. See
Mondragon-Santiago, 564 F.3d at 365.
Velasquez-Martinez also argues that the district court reversibly erred by
applying a 16-level crime of violence adjustment to his base offense level for his
prior Texas conviction for indecency with a child. He contends that this
conviction does not constitute a crime of violence within the meaning of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because it was for an offense that does not have as an element
the use of force, nor does it constitute an enumerated offense. This argument is,
as he acknowledges, unavailing because it is foreclosed by precedent. See United
States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008), cert. denied, 129 S. Ct. 1388(2009).
The judgment of the district court is AFFIRMED.
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