Case: 12-50941 Document: 00512335380 Page: 1 Date Filed: 08/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 8, 2013
No. 12-50941
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS ALVAREZ-MORA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:12-CR-187-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Alvarez-Mora appeals the sentence imposed for his guilty plea
conviction for illegal reentry. He was sentenced to 70 months of imprisonment
and three years of supervised release.
In his first claim of error, he contends that the district court erred in
enhancing his sentence for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
based on his California conviction for assault with a deadly weapon. We need
not determine whether Alvarez-Mora preserved this claim of error and whether
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50941 Document: 00512335380 Page: 2 Date Filed: 08/08/2013
No. 12-50941
the state court documents he relies on are of the type approved in Shepard v.
United States, 544 U.S. 13, 16 (2005), because this claim of error is patently
without merit. Alvarez-Mora mistakenly contends that his prior conviction is
not a “crime of violence” as defined by § 2L1.2 because his conviction is not a
“serious” or “violent” felony as defined by California law. He pleaded guilty to
count three of an information that charged him with committing assault with a
deadly weapon in violation of California Penal Code § 245(a)(1) by willfully and
unlawfully assaulting the victim with a knife. See CAL. PENAL CODE § 245(a)(1)
(2007). We have held that a conviction under this statute is categorically the
enumerated crime of violence offense of aggravated assault. United States v.
Sanchez-Ruedas, 452 F.3d 409, 412-14 (5th Cir. 2006). Thus, he has failed to
show that the district court erred, plainly or otherwise, in enhancing his
sentence for a crime of violence.
Next, he contends that the district court unconstitutionally relied on facts
not charged or proved beyond a reasonable doubt in finding that he had a prior
conviction for a crime of violence. The district court did not commit any
constitutional error; Alvarez-Mora was convicted and sentenced under the
advisory sentencing regime, and the facts relied on by the district court did not
increase the statutory maximum sentence. See United States v. Thompson, 454
F.3d 459, 467-68 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.
2