United States v. Gonzalez , 327 F. App'x 503 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2009
No. 08-20614
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO GONZALEZ,
Also Known as Gilberto Reyes Gonzalez, Also Known as Gilberto Gonzalez, Jr.,
also Known as Gilberto Gonzalez-Reyes,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:08-CR-154-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Gilberto Gonzalez appeals the seventy-month sentence imposed following
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20614
his guilty plea conviction of illegal reentry into the United States after deporta-
tion. He argues that the district court erred in applying a sixteen-level crime-of-
violence (“COV”) enhancement based on his prior Texas conviction of sexual as-
sault of a child. He asserts that the Texas conviction does not constitute a COV
within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because it does not have as
an element the use of force, nor does it constitute an enumerated offense. This
court has not addressed whether the Texas crime of sexual assault of a child is
a COV under § 2L1.2(b)(1)(A)(ii). See United States v. Ruiz-Arriaga, No. 08-
40242, 2009 WL 941368, at *1-*2 (5th Cir. Apr. 9, 2009). Nevertheless, as he did
before the district court, Gonzalez acknowledges that under this court’s prece-
dent, his Texas conviction of indecency with a child does constitute a COV under
§ 2L1.2(b)(1)(A)(ii). United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008) (cit-
ing United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000)), cert. de-
nied, 129 S. Ct. 1388 (2009). Gonzalez therefore concedes that the district court
did not err in applying the enhancement.
Gonzalez contends that his sentence is procedurally unreasonable because
the district court failed to provide reasons for the within-guidelines sentence or
for denying his nonfrivolous argument for a below-guidelines sentence. Where
a defendant has failed to object on specific grounds to the reasonableness of his
sentence, thereby denying the court the opportunity to identify and correct any
mistake, we review for plain error. United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). After sentence was imposed,
Gonzalez objected on the basis that it was “unreasonable” in light of 18 U.S.C.
§ 3553(a) “because it imposes a sentence that is greater than necessary to effec-
tuate the purposes of punishment in that statute.” That objection, however, was
not sufficient to preserve Gonzalez’s procedural claim of error, see United States
v. Mondragon-Santiago, No. 07-41099, 2009 WL 782894, at *1, *3 (5th Cir. Mar.
26, 2009), so the claim is reviewed for plain error, see id.
To establish plain error, he must show an error that is clear or obvious and
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No. 08-20614
that affects his substantial rights. See United States v. Baker, 538 F.3d 324, 332
(5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings. Id.
The district court denied Gonzalez’s request for a below-guidelines sen-
tence without giving reasons. The total explanation for the sentence was as fol-
lows: “The Court has considered the advisory guidelines and finds that a sen-
tence within the guideline range is consistent with and takes into account all the
purposes of Section 3553(a), although I do believe that a sentence on the low end
of the guideline, as the government has suggested, is appropriate.”
Gonzalez is correct that the court did not adequately explain its reasons.
See Mondragon-Santiago, 2009 WL 782894, at *5. The sentence, however, is
within the advisory guideline range. Furthermore, Gonzalez fails to show that
an explanation would have changed the length of the sentence. Thus, he has not
established that the error affected his substantial rights. See id. at *7.
Because Gonzalez has withdrawn his claim challenging the calculation of
his criminal history score, we do not review the issue. The judgment of sentence
is AFFIRMED.
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