United States v. Perfecto Guerra ( 2013 )

Case: 11-20776 Document: 00512414419 Page: 1 Date Filed: 10/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2013
No. 11-20776
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
PERFECTO BONILLA GUERRA, Also Known as Perfecto Guerra Bonilla,
Also Known as Perfecto Bonilla-Guerra, Also Known as Perfecto Bonella,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-833-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Perfecto Bonilla Guerra pleaded guilty of illegal reentry by a previously
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-20776 Document: 00512414419 Page: 2 Date Filed: 10/21/2013
No. 11-20776
deported alien after an aggravated felony conviction. His offense level was
increased for a Texas conviction for attempted sexual assault that was deemed
a “crime of violence” (“COV”) under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He contends
that his Texas conviction was not a COV because some of the offenses codified
as sexual assault in Texas Penal Code § 22.011 do not qualify as COVs under the
sentencing guidelines.
We review for plain error because the issue is raised for the first time on
appeal. See United States v. Andino-Ortega, 608 F.3d 305, 309 (5th Cir. 2010).
To establish plain error, Bonilla Guerra must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
We recently rejected, on de novo review, an indistinguishable argument in
United States v. Castro-Gonzalez, No. 11-41090, 2013 WL 2421677, at *1–4 (5th
Cir. Jun. 4, 2013) (per curiam) (unpublished), in which we held that a conviction
under Section 22.011 is a forcible-sex offense and therefore a COV under United
States Sentencing Guidelines § 2L1.2. Accordingly, Castro-Gonzalez, though
unpublished, is on point and sufficient to show that there was no obvious or
plain error. See Puckett, 556 U.S. at 135.
Also, Bonilla Guerra contends that the district court plainly erred in
convicting, sentencing, and entering judgment under 8 U.S.C. § 1326(b)(2),
because he was not deported following a conviction for an “aggravated felony” as
defined in 8 U.S.C. § 1101(a)(43). He maintains that the sentence should be
vacated and remanded for resentencing or, in the alternative, for reformation of
the judgment.
As Bonilla Guerra acknowledges, his claim is reviewed for plain error
because he did not raise it in the district court. See United States v. Mondragon-
Santiago, 564 F.3d 357, 368 (5th Cir. 2009). The Texas conviction does not
2
Case: 11-20776 Document: 00512414419 Page: 3 Date Filed: 10/21/2013
No. 11-20776
qualify as an “aggravated felony” for purposes of § 1101(a)(43)(F). See Rodriguez
v. Holder, 705 F.3d 207, 215-16 (5th Cir. 2013). As he concedes, however, Bonilla
Guerra cannot show that the error affected his substantial rights given that his
sentence did not exceed the statutory maximum under § 1326(b)(1). See
Mondragon-Santiago, 564 F.3d at 368. Because Bonilla Guerra cannot overcome
plain-error review and because the government does not concede that the judg-
ment should be reformed, Bonilla Guerra has not shown that we should remand
for resentencing or that the judgment should be reformed. Cf. id. at 368–69; see
also Castro-Gonzalez, 2013 WL 2421677, at *6.
AFFIRMED.
3