United States v. Rosales-Martinez , 349 F. App'x 925 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2009
No. 08-10131 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PABLO MARTIN ROSALES-MARTINEZ, also known as Martin Pablo
Martinez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-254-ALL
Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Pablo Martin Rosales-Martinez pleaded guilty to violating 8 U.S.C. § 1326
by reentering the United States after having been deported. Finding that
Martinez had a prior Texas conviction for indecency with a minor, the district
court enhanced his base offense level on account of a felony conviction of a crime
of violence and sentenced him to 36 months in prison, which was below 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10131
guidelines range.1 Because he did not object to the enhancement or the sentence,
review is for plain error.2
Counsel for Martinez twice moved to withdraw pursuant to Anders v.
California.3 We denied both motions because of insufficient documentation in
the record that would identify the statute that was the basis for Martinez’s
Texas conviction. The parties have now supplemented the record with
appropriate documents from the state court.4
Martinez contends that the record did not establish definitively that he
had been convicted of indecency with a child under T EXAS P ENAL C ODE §
21.11(a)(1). He asserts the state record equally supports a finding that he had
been convicted of sexual assault under T EXAS P ENAL C ODE § 22.011(a)(2)(A),
which he contends is not a conviction for a crime of violence. We disagree.
The jury instructions produced by the Government in response to our
earlier order show that Martinez was charged with committing the crime of
indecency with a child by engaging “in sexual contact with a child younger than
17 years of age and not his spouse.” The language of the instructions tracks the
language of § 21.11(a)(1), which criminalizes conduct that this court has held
constitutes a crime of violence for purposes of § 2L1.2, specifically, the
1
See U.S.S.G. § 2L1.2(b)(1)(A)(ii).
2
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition
for cert. filed (June 24, 2009) (No. 08-11099).
3
386 U.S. 738 (1967).
4
See Shepard v. United States, 544 U.S. 13, 15 (2005).
2
No. 08-10131
enumerated offense of sexual abuse of a minor.5 Given the language in the jury
instructions, there is no longer any question that Martinez was convicted under
§ 21.11(a)(1).
Martinez’s Texas conviction was for a crime of violence. Accordingly there
was no error and the district court’s judgment is AFFIRMED.
5
See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008). We have also held that
a violation of § 21.11(a)(2) constitutes the offense of sexual abuse of a minor. See United States
v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). Thus, a conviction under either
subsection of § 21.11 would be for an offense that constitutes a crime of violence.
3