United States v. Jose Martinez

Case: 09-20779 Document: 00511274433 Page: 1 Date Filed: 10/26/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 26, 2010
No. 09-20779
Conference Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE LUIS RODRIGUEZ MARTINEZ, also known as Jose Luis Rodriguez, also
known as Jose Luis Rodriguez-Martinez,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-339-1

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Luis Rodriguez Martinez (Rodriguez) appeals the sentence imposed
following his conviction for illegal reentry after deportation under 8 U.S.C.
§ 1326. Rodriguez contends that the district court erred by imposing a 16-level
crime of violence enhancement based on his prior Texas conviction for sexual
assault of a child, which is a violation of Texas Penal Code § 22.011(a)(2). He
argues that this conviction does not constitute the enumerated offense of sexual

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20779 Document: 00511274433 Page: 2 Date Filed: 10/26/2010

No. 09-20779

abuse of a minor or statutory rape under the Guidelines because an offense
under § 22.011 can be committed against a victim who is only 16 years of age.
Rodriguez concedes that his argument is foreclosed and moves for summary
affirmance to preserve the issue for appeal.
As Rodriguez concedes, his argument is foreclosed by United States v.
Castro-Guevarra, 575 F.3d 550 (5th Cir.), cert. denied, 130 S. Ct. 649 (2009).
Accordingly, his motion for summary affirmance is GRANTED and the judgment
of the district court is AFFIRMED.

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