Case: 10-10393 Document: 00511316471 Page: 1 Date Filed: 12/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2010
No. 10-10393
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERICK ORTIZ-MALDONADO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CR-304-1
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Erick Ortiz-Maldonado (Ortiz) has pleaded guilty of illegal reentry after
removal from the United States and has appealed his sentence. Ortiz contends
that the district court erred in increasing his offense level by 16 levels, pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because he was convicted prior to his removal of
the Texas offense of aggravated assault. The Government contends that this
issue is foreclosed by United States v. Guillen-Alvarez, 489 F.3d 197, 199-201
(5th Cir. 2007).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10393 Document: 00511316471 Page: 2 Date Filed: 12/08/2010
No. 10-10393
Ortiz concedes that this court’s review is for plain error. See Puckett v.
United States, 129 S. Ct. 1423, 1428 (2009). To show plain error, Ortiz must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Id. at 1429.
Because Ortiz’s argument attempting to distinguish Guillen-Alvarez
involves an extension of the law, it could not have been clear or obvious error.
See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010). The motion for
summary affirmance is GRANTED and the alternative motion for an extension
of time within which to file an appellate brief is DENIED AS UNNECESSARY.
The judgment is AFFIRMED.
2