United States v. Navarro-Padilla , 265 F. App'x 164 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2008
No. 06-50554
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOSE DIMAS NAVARRO-PADILLA, also known as Dimas Padilla Navarro, also
known as Demis Navarro, also known as Dimas Navarro-Padilla, also known as
Dimas Navarro, also known as Damos Navarro
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-170-1
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Dimas Navarro-Padilla appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. Navarro-Padilla argues that the district court plainly erred in finding
that his prior New York conviction for sexual abuse in the first degree was a
“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
*
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should not be published and is not precedent except under the limited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. 06-50554
As Navarro-Padilla did not object in the district court to the enhancement
of his offense level under § 2L1.2, we review his sentence for plain error.
See United States v. Olano, 507 U.S. 725, 731-37 (1993). As the presentence
report’s assertion that Navarro-Padilla’s offense of sexual abuse was a crime of
violence was the only basis for the district court’s application of the
enhancement, the district court committed error that was clear or obvious. See
United States v. Martinez-Vega, 471 F.3d 559, 562 (5th Cir. 2006). We determine
whether the error is plain, however, at the time of appellate consideration, not
at the time of trial. Id. at 561.
The record, as supplemented on appeal, makes clear that Navarro-Padilla
was indicted for one count of sodomy in the first degree in violation of N.Y.
PENAL LAW § 130.50(3) for engaging in “deviate sexual intercourse with another
person who [was] less than eleven years old, to wit: a six year old male.” The
certificate of his conviction indicates that he pleaded guilty to the lesser offense
of sexual abuse in the first degree in violation of N.Y. PENAL LAW § 130.65.
Although the offense of sexual abuse in the first degree can be committed in
various ways, the indictment makes clear that Navarro-Padilla pleaded guilty
to § 130.65(3) for having sexual contact with a person under 11 years old.
The New York offense of sexual abuse in the first degree under § 130.65(3)
constitutes the enumerated offense of sexual abuse of a minor under § 2L1.2.
See United States v. Izaguirre-Flores, 405 F.3d 270, 275-76 (5th Cir. 2005).
Accordingly, Navarro-Padilla has failed to show that the district court’s error in
enhancing his offense level under § 2L1.2 is plain at the time of appellate
consideration. See Martinez-Vega, 471 F.3d at 563; see also United States v.
Fernandez-Cusco, 447 F.3d 382, 388 (5th Cir.), cert. denied, 127 S. Ct. 194 (2006).
Navarro-Padilla’s sentence is AFFIRMED.
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