Case: 12-41075 Document: 00512346667 Page: 1 Date Filed: 08/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2013
No. 12-41075
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO LUGO-GUTIERREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-539-1
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
Francisco Lugo-Gutierrez appeals the 60-month sentence imposed
following his conviction of being present unlawfully in the United States
following deportation. He argues that the district court erred by imposing a 16-
level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior
conviction for indecency with a child by sexual contact under § 21.11(a)(1) of the
Texas Penal Code. He concedes, however, that his arguments are foreclosed by
our decision in United States v. Rodriguez, 711 F.3d 541, 562-63 (5th Cir. 2013)
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41075 Document: 00512346667 Page: 2 Date Filed: 08/20/2013
No. 12-41075
(en banc), petition for cert. filed (June 6, 2013) (No. 12-10695). Accordingly, the
judgment of the district court is AFFIRMED.
2