Case: 10-41120 Document: 00511554264 Page: 1 Date Filed: 07/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 28, 2011
No. 10-41120
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MANUEL ANTONIO ROSALES-MIRANDA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:10-CR-838-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Manuel Antonio Rosales-Miranda appeals the 13-month sentence imposed
following his guilty plea conviction of one count of being illegally present in the
United States after deportation. He argues the district court plainly erred in
applying a four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(D) because his
Virginia conviction of assault of a police officer was not a felony for purposes of
that section. To demonstrate plain error, Rosales-Miranda must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41120 Document: 00511554264 Page: 2 Date Filed: 07/28/2011
No. 10-41120
v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this
court may correct the error when it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (quotation marks, brackets, and
citation omitted).
If the defendant was previously deported after “a conviction for any other
felony,” his offense level is increased by four levels. U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(D). “Felony” is defined as “any federal, state, or local
offense punishable by imprisonment for a term exceeding one year.” Id. § 2L1.2
cmt. n.2.
As Rosales-Miranda acknowledges, he was convicted under Section 18.2-
57(C) of the Virginia Code, which makes the offense of assault on a law
enforcement officer a Class 6 felony. Va. Code § 18.2-57(C). Section 18.2-10(f)
of the Virginia Code provides that a Class 6 felony is punishable by “a term of
imprisonment of not less than one year nor more than five years,” but the
statute allows imposition of a sentence of “confinement in jail for not more than
12 months” in the discretion of the trial court or the jury. Id. § 18.2-10(f).
Rosales-Miranda, who was sentenced to a six-month period of detention in the
Fairfax County Detention Center, relies on Section 18.2-10(f) to argue that his
conviction was not a felony for purposes of Section 2L1.2(b)(1)(D) as the
maximum term of confinement for his offense does not exceed one year.
“Absent mandatory minimum sentences . . . Class 6 felonies are generally
punishable by no less than one and no more than five years imprisonment.”
Rawls v. Commonwealth, 634 S.E.2d 697, 703 n.8 (Va. 2006) (citing § 18.2-10).
Although the Virginia trial court had the discretion to impose a jail sentence of
no more than 12 months, under the plain language of Section 18.2-10 Rosales-
Miranda’s Virginia offense was punishable by a maximum of five years of
imprisonment. The offense in question was therefore a felony for purposes of
Section 2L1.2(b)(1)(D). See U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.2.
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No. 10-41120
Ramirez has failed to show error, plain or otherwise, in the application of the
Section 2L1.2(b)(1)(D) enhancement.
Rosales-Miranda also claims that his trial counsel was ineffective for
failing to object to the enhancement. As the previous discussion illustrates, an
objection to application of the enhancement under Section 2L1.2(b)(1)(D) would
have been meritless. Counsel is not ineffective for failing to make a meritless
objection. See Clark v. Collins, 19 F.3d 959, 965-66 (5th Cir. 1994). Further,
because an objection would have been unsuccessful, Rosales-Miranda fails to
establish the required prejudice. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Rosales-Miranda has failed to show that his trial attorney was
ineffective. See United States v. Saenz-Forero, 27 F.3d 1016, 1021 (5th Cir.
1994).
AFFIRMED.
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