United States v. Hector Lopez-Chavez

Case: 14-40986 Document: 00513139208 Page: 1 Date Filed: 08/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40986 FILED
Summary Calendar August 3, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HECTOR JESUS LOPEZ-CHAVEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-236
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Hector Jesus Lopez-Chavez appeals the 41-month sentence imposed
upon his guilty plea conviction for being found unlawfully present in the
United States after having previously been deported, in violation of 8 U.S.C.
§ 1326(a), (b). The district court enhanced Lopez-Chavez’s sentence based
upon its finding that his prior Nebraska conviction for attempted sexual
assault in the first degree on a child was a crime of violence under U.S.S.G.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40986
§ 2L1.2(b)(1)(A). Chavez-Lopez argues that the offense for which he was
convicted did not qualify as a crime of violence because the statute under which
he was convicted was overly broad and did not constitute “statutory rape” or
“sexual abuse of a minor.”
Lopez-Chavez did not object on this basis in the district court.
Accordingly, we review for plain error only. See United States v. Medina-
Anicacio, 325 F.3d 638, 643 (5th Cir. 2003); see also United States v. Chavez-
Hernandez, 671 F.3d 494, 497-98 (5th Cir. 2012). Lopez-Chavez must show,
inter alia, an error that was clear or obvious. See Puckett v. United States, 556
U.S. 129, 135 (2009); see also United States v. Henao-Melo, 591 F.3d 798, 806
(5th Cir. 2009).
In 2008, Lopez-Chavez pleaded no contest to criminal attempted sexual
assault in the first degree on a child in violation of NEB. REV. STAT. §§ 28-
319(1)(c) and 28-201(1)(b). Although we have not addressed that particular
statute, given the plain meaning of “sexual abuse of a minor” as we have
defined that offense, we discern no clear or obvious error and likely no error at
all. See § 2L1.2, comment (n.1(B)(iii)); United States v. Rodriguez, 711 F.3d
541, 548, 552-53, 562 (5th Cir. 2013) (en banc); United States v. Zavala-
Sustaita, 214 F.3d 601, 603-04 (5th Cir. 2000); see also United States v.
Sanchez, 667 F.3d 555, 559 (5th Cir. 2012) (noting that an attempt to commit
an offense under a qualifying statute is a crime of violence as well). Moreover,
even if Lopez-Chavez could show plain error, we would decline to exercise our
discretion to correct it; errors that result in sentence increases, even
substantial ones, “do[] not inevitably affect the fairness, integrity, or public
reputation of judicial process and proceedings.” United States v. Ellis, 564 F.3d
370, 378–79 (5th Cir. 2009). Given the foregoing, we need not determine
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No. 14-40986
whether a violation also qualifies as “statutory rape.” See United States v.
Balderas-Rubio, 499 F.3d 470, 474 n.5 (5th Cir. 2007).
The judgment of the district court is AFFIRMED.
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