United States v. Oscar Romero-Molina ( 2015 )

Case: 13-10859 Document: 00513020684 Page: 1 Date Filed: 04/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10859 FILED
Summary Calendar
April 27, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSCAR ROMERO-MOLINA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-59-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Oscar Romero-Molina appeals the sentence imposed following his guilty
plea conviction for illegal reentry into the United States after removal. He
asserts that the appeal waiver in his sentencing agreement is unenforceable
because the Government refused to move for an additional one-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(b) unless he agreed to
waive his right to appeal. He also challenges the district court’s imposition of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10859
a 16-level sentencing enhancement under U.S.S.G. § 2L1.2. As discussed
below, because Romero-Molina has not shown that the district court plainly
erred in imposing the sentencing enhancement, we need not address whether
he knowingly and voluntarily waived his right to appeal. See United States v.
Siros, 469 F. App’x 373, 374 (5th Cir. 2012) (per curiam) (citing United States
v. Story, 439 F.3d 226, 230–31 (5th Cir. 2006)).
According to Romero-Molina, the district court plainly erred in imposing
a 16-level sentencing enhancement under § 2L1.2(b)(1)(A)(ii) based on his prior
conviction for assault with a dangerous weapon under District of Columbia
Code § 22-402. He maintains that his prior conviction does not meet the generic
definition of aggravated assault because the statute does not require an
assault.
As Romero-Molina concedes, review is limited to plain error because he
did not object to the enhancement in the district court. See United States v.
Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam). To show plain
error, he must show a forfeited error that is clear or obvious and that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes this showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
The district court did not plainly err in imposing the § 2L1.2(b)(1)(A)(ii)
sentencing enhancement. We have not addressed whether a conviction for
assault with a dangerous weapon under D.C. Code § 22-402 is a crime of
violence for purposes of § 2L1.2(b)(1)(A)(ii) in a published opinion. In an
unpublished opinion, we held that the district court did not err in imposing a
crime-of-violence enhancement for a District of Columbia conviction for assault
with a dangerous weapon because “the generic contemporary meaning of
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No. 13-10859
aggravated assault does not require that the defendant have caused or
intended to cause bodily injury.” United States v. Pereira-Carballo, 230 F.
App’x 460, 461 (5th Cir. 2007) (per curiam). To rise to the level of plain error,
a “legal error must be clear or obvious, rather than subject to reasonable
debate.” United States v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009) (internal
quotation marks and citation omitted). Because of the lack of published
authority addressing this issue, Romero-Molina has not shown that the district
court plainly erred in imposing the § 2L1.2 sentencing enhancement. See id.;
see also United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (holding that
a claim that is “novel” and “not entirely clear under the existing case authority”
is “doom[ed] . . . for plain error” (internal quotation marks omitted)).
AFFIRMED.
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