United States v. Cruz ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2009
No. 08-40788
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ENIL JOSUE CRUZ, also known as Josue Galindo-Cruz,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-394-1
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Enil Josue Cruz pleaded guilty to one count of illegal reentry into the
United States after a previous deportation and was sentenced to serve 46
months in prison. Cruz appeals his sentence. Cruz argues first that the district
court reversibly erred by applying a 16-level crime of violence adjustment to his
base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) . He contends that his
Texas conviction for indecency with a child does not qualify as the enumerated
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-40788
crime of sexual abuse of a minor under the United States Sentencing Guidelines
because Texas defines the age of sexual consent as 17 years old and the
contemporary and common meaning of the word “minor” is 16 years of age. See
Tex. Penal Code § 21.11. This argument is, as he acknowledges, foreclosed by
precedent. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008), cert.
denied, 129 S. Ct. 1388 (2009).
Cruz also argues that the district court committed significant procedural
error by imposing a sentence within the pertinent guidelines range without
giving specific reasons for rejecting his nonfrivolous arguments in favor of a
sentence below this range. We review this issue for plain error only 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), petition for cert. filed (June 24,
2009) (No. 08-11099). To show plain error, Cruz 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 Cruz’s arguments, Cruz still has not shown that he should receive relief
on this claim. Cruz has failed to show that a more extensive explanation for his
sentence would have resulted in a different sentence. See Mondragon-Santiago,
564 F.3d at 362-64. Cruz’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 id. at 365.
The judgment of the district court is AFFIRMED.
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