United States v. Jesus Zamora

Case: 12-20571 Document: 00512220989 Page: 1 Date Filed: 04/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 25, 2013
No. 12-20571
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MENDOZA ZAMORA, Also Known as Jesus Zamora Mendoza,
Also Known as Jesus Mendoza, Also Known as Jesus Mendoza-Zamora,
Also Known as Jesus Z. Mendoza, Also Known as Jesus Mendozz,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:11-CR-887-1
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20571 Document: 00512220989 Page: 2 Date Filed: 04/25/2013
No. 12-20571
Jesus Mendoza Zamora appeals his sentence for illegal reentry under
8 U.S.C. § 1326(a) and (b)(1). He challenges the application of the eight-level
enhancement in U.S.S.G. § 2L1.2(b)(1)(C) for having been previously removed
after an aggravated-felony conviction. The enhancement was based on his Texas
retaliation and federal illegal reentry convictions.
We review a preserved challenge to the application of the sentencing
guidelines de novo and have assumed, without deciding, that de novo review
applies to Mendoza Zamora’s claim of error. See United States v. Medina-Torres,
703 F.3d 770, 773 (5th Cir. 2012). Section 2L1.2(b)(1)(C) provides an eight-level
enhancement of the offense level if the defendant was previously deported after
an aggravated-felony conviction. We employ the categorical approach to deter-
mine whether a conviction meets the definition of an aggravated felony by exam-
ining the statute of conviction rather than the underlying facts. Id. at 774.
“Where the statute of conviction contains a series of disjunctive elements, at
least one of which may not qualify as an aggravated felony, we employ a modi-
fied categorical approach to determine whether the particular crime for which
the defendant was convicted constitutes an aggravated felony.” Id. (internal
quotation marks and citation omitted). Under that approach, we are “‘limited
to examining the statutory definition, charging document, written plea agree-
ment, transcript of plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.’” Id. (quoting Shepard v. United States,
544 U.S. 13, 16 (2005)).
Aggravated felony is defined by 8 U.S.C. § 1101(a)(43). § 2L1.2 cmt.
n.3(A). An aggravated felony includes “an offense described in section 1325(a)
or 1326 of . . . title [8] committed by an alien who was previously deported on the
basis of a conviction for an offense described in another subparagraph of . . . par-
agraph [43].” § 1101(a)(43)(O). Section 1326(a) prohibits an alien from reenter-
ing the United States after he has been removed. A twenty-year statutory
maximum applies to an alien “whose removal was subsequent to a conviction for
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Case: 12-20571 Document: 00512220989 Page: 3 Date Filed: 04/25/2013
No. 12-20571
commission of an aggravated felony.” § 1326(b)(2). Thus, a conviction for illegal
reentry under § 1326(b)(2) is an aggravated felony within the meaning of
§ 1101(a)(43)(O). See United States v. Gamboa-Garcia, 620 F.3d 546, 548 (5th
Cir. 2010).
Mendoza Zamora was previously convicted of illegal reentry; the judgment
cited § 1326(a) and (b)(2) as the statute of conviction. The retaliation conviction
was the underlying aggravated felony used to characterize the illegal-reentry
conviction as one under § 1326(b)(2). We need not determine whether Mendoza
Zamora can relitigate that characterization, because he does not explicitly argue
that his illegal-reentry conviction is not an aggravated felony because its
underlying retaliation conviction is not an aggravated felony. Mendoza Zamora
is represented by counsel, so he is not entitled to a liberal construction of his
arguments. See Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
As to Mendoza Zamora’s contention that there was no Shepard-approved
evidence establishing that the illegal-reentry conviction was under § 1326(b)(2),
such evidence was not required. By relying on the citation to § 1326(b)(2) in the
prior illegal-reentry judgment to conclude that that conviction was under
§ 1326(b)(2), the district court properly used the judgment to establish the exis-
tence of the prior conviction. See United States v. Moreno-Florean, 542 F.3d 445,
449-50 n.1 (5th Cir. 2008); United States v. Neri-Hernandes, 504 F.3d 587,
591-92 (5th Cir. 2007). Because this conviction constituted an aggravated felony
within the meaning of § 1101(a)(43)(O), the district court did not err, plainly or
otherwise, in enhancing the sentence under § 2L1.2(b)(1)(C).
The judgment of sentence is AFFIRMED.
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