United States v. Cortez-De Cano

332 F. App'x 207

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2009
• Docket: 07-51039
• Status: Unpublished

Opinion

PER CURIAM: *

Hector Cortez-De Cano (Cortez) pleaded guilty to being an alien found unlawful ly 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 pri- or state court conviction for assault and battery with a dangerous weapon as a crime of violence to enhance his sentence by 16 offense levels pursuant to U.S.S.G. § 2L1.2(b)(l)(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, — U.S. —, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (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, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); Ochoa-Cruz, 442 F.3d at 867.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.