United States v. Valencia-Dominguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 5, 2025
• Docket: 24-20454
• Status: Unpublished

Opinion

Case: 24-20454 Document: 83-1 Page: 1 Date Filed: 12/05/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit

FILED No. 24-20454 December 5, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Marcelino Valencia-Dominguez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:24-CR-35-1 ______________________________

Before Barksdale, Oldham, and Douglas, Circuit Judges. Per Curiam: * Marcelino Valencia-Dominguez challenges his below-Guidelines 54- months’ imprisonment sentence (with two years’ supervised release), imposed following his conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a) (criminalizing illegal reentry), (b)(2) (setting penalty for alien removed following commission of aggravated felony). He asserts the district

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-20454 Document: 83-1 Page: 2 Date Filed: 12/05/2025

No. 24-20454

court erred by classifying his prior Texas aggravated robbery offenses as crimes of violence under Guideline § 4B1.2(a). His contention fails. Although post-Booker, the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Valencia asserts Guideline § 4B1.2(a) is a categorical mismatch with Texas aggravated robbery because Texas robbery includes “conduct that occurs . . . in immediate flight after the attempt or commission of theft”. TEX. PENAL CODE § 29.01(1) (defining “[i]n the course of committing theft” for purposes of robbery). This contention is foreclosed by our court’s recent decision in United States v. Wickware, 143 F.4th 670, 674–75 (5th Cir. 2025) (holding “the elements of robbery under § 29.02”—which incorporate “[i]n the course of committing theft” as defined under § 29.01(1)—“are the same or narrower than those of the Guidelines’ generic robbery offense”). Valencia also contends—for the first time in his reply brief—that robbery under Guideline § 4B1.2(a) is a categorical mismatch with § 29.02(a) because § 4B1.2(a) excludes reckless conduct. Although he raised this contention in response to the Government’s asserting Texas robbery is not a categorical mismatch, he fails to show why he should be allowed to raise his contention for the first time in his reply brief. See United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009) (holding “court has the discretion to

2 Case: 24-20454 Document: 83-1 Page: 3 Date Filed: 12/05/2025

address [an] issue [raised by Appellant for first time in reply brief in response to Appellee’s brief]”.); e.g., Wickware, 143 F.4th at 675 n.2. Accordingly, he waived his contention by failing to raise it in his opening brief. E.g., United States v. Fernandez, 48 F.4th 405, 412 (5th Cir. 2022). AFFIRMED.