United States v. Cortez-De Cano

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2009
No. 07-51039
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HECTOR CORTEZ-DE CANO, also known as Hector Cortez
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-216-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Hector Cortez-De Cano (Cortez) pleaded guilty to being an alien found
unlawfully in the United States following a prior deportation. Cortez was
sentenced to 41 months of imprisonment and a three-year term of supervised
release.
For the first time on appeal, Cortez argues that the district court erred in
relying upon the Presentence Investigation Report’s (PSR) characterization of
his prior state court conviction for assault and battery with a dangerous weapon
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-51039
as a crime of violence to enhance his sentence by 16 offense levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii). As Cortez concedes, we review this issue only for
plain error. To show plain error, the appellant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
After reviewing the record, we conclude that although the district court
plainly erred in relying solely upon the PSR’s characterization of Cortez’s past
offense for enhancement purposes, see United States v. Garza-Lopez, 410 F.3d
268, 274 (5th Cir. 2005), Cortez has failed to demonstrate that but for the error,
the district court would not have imposed the enhancement. See United States
v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006); United States v. Mares, 402
F.3d 511, 520 (5th Cir.2005). Consequently, he has failed to establish that the
error affects his substantial rights. See United States v. Dominguez Benitez, 542
U.S. 74, 81 (2004); Ochoa-Cruz, 442 F.3d at 867.
AFFIRMED.
2