United States v. Oghenero Aluya

Case: 14-10081 Document: 00512904131 Page: 1 Date Filed: 01/15/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2015
No. 14-10081
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OGHENERO PETER TORITSEJU ALUYA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-114-1
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Oghenero Peter Toritseju Aluya appeals the sentence imposed following
his guilty plea conviction for knowingly preventing and hampering his
departure from the United States pursuant to an outstanding final order of
removal in violation of 8 U.S.C. § 1253(a)(1)(C). He contends that the district
court plainly erred when it enhanced his sentence based on a finding that his
prior Oklahoma conviction for aggravated assault and battery was a crime 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-10081 Document: 00512904131 Page: 2 Date Filed: 01/15/2015
No. 14-10081
violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Because Aluya did not
object to the § 2L1.2(b)(1)(A)(ii) enhancement in the district court, our review
is for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir.
2005). To show plain error, Aluya 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. See id.
The state court documents provide that on June 5, 2012, Aluya pleaded
guilty to one count of “AGGRAVATED ASSAULT AND BATTERY ~ 21 O.S.
§ 646(2), a FELONY.” Relying on the citations to “21 O.S. § 646(2),” Aluya
contends that he was convicted of aggravated assault and battery in violation
of OKLA. STAT. ANN. tit. 21 § 646(A)(2). The Government contends that the
citations were typographical errors and that the district court did not plainly
err in determining that Aluya was convicted under § 646(A)(1).
As the Government notes, the language of the Second Amended
Information tracks the elements of § 646(A)(1), i.e., that great bodily injury
was inflicted upon the person assaulted. § 646(A)(1). This language was
explicitly set forth in the presentence report, which the district court adopted.
Although the state court documents identified the statute of conviction as “21
O.S. § 646(2),” there is no such subsection. See § 646. Further, § 646(A)(2)
requires that the assault and battery be “committed by a person of robust
health or strength upon one who is aged, decrepit, or incapacitated,”
§ 646(A)(2), elements that are not alleged in the Second Amended Information.
Therefore, the district court did not plainly err in implicitly determining that
Aluya was convicted under § 646(A)(1). Because Aluya’s § 646(A)(1) conviction
falls within the generic, contemporary meaning of aggravated assault, it
2
Case: 14-10081 Document: 00512904131 Page: 3 Date Filed: 01/15/2015
No. 14-10081
qualifies as an enumerated crime of violence for purposes of § 2L1.2(b)(1)(A)(ii).
See United States v. Mungia-Portillo, 484 F.3d 813, 816-17 (5th Cir. 2007).
Accordingly, Aluya cannot show error, plain or otherwise. See Puckett, 556
U.S. at 135.
AFFIRMED.
3