Case: 10-10453 Document: 00511574751 Page: 1 Date Filed: 08/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2011
No. 10-10453
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL MENDEZ-RUBI,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-166-1
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Miguel Mendez-Rubi appeals the sentence imposed following his guilty
plea conviction for illegal reentry following deportation in violation of 8 U.S.C.
§ 1326. He contends that the district court plainly erred when it enhanced his
sentence based on a finding that his prior conviction for aggravated assault of
a peace officer in violation of TEX. PENAL CODE ANN. § 22.02(a)(2)(A) (1991) was
a crime of violence under 18 U.S.C. § 16 and, thus, an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C) and § 1326(b)(2). Because Mendez-Rubi did
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10453 Document: 00511574751 Page: 2 Date Filed: 08/17/2011
No. 10-10453
not object to the aggravated felony enhancement in the district court, we review
for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
A conviction for aggravated assault of a peace officer in violation of
§ 22.02(a)(2)(A) (1991) does not qualify as a crime of violence under § 16(a)
because the use of force was not an element of the offense. See United States v.
Villegas-Hernandez, 468 F.3d 874, 879, 882 (5th Cir. 2006). However, because
we have yet to decide whether such a conviction constitutes a crime of violence
under § 16(b) and precedent would have to be extended to compel the result
urged by Mendez-Rubi, the alleged error is not clear or obvious. See United
States v. Trejo, 610 F.3d 308, 319-20 (5th Cir. 2010). Accordingly, the error, if
any, is not plain. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
AFFIRMED.
2