Case: 14-40664 Document: 00512910822 Page: 1 Date Filed: 01/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40664
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 22, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
DENNIS DAGOBERTO PADILLA-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1692-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Dennis Dagoberto Padilla-Garcia pleaded guilty to being illegally
present in the United States following removal. The probation officer applied
a 16-level crime of violence (COV) enhancement based on Padilla-Garcia’s
North Carolina conviction of conspiracy to commit robbery. Padilla-Garcia did
not object to the enhancement, nor did he object to the probation officer’s
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40664 Document: 00512910822 Page: 2 Date Filed: 01/22/2015
No. 14-40664
determination that he faced a maximum of 20 years of imprisonment. The
district court sentenced Padilla-Garcia to a 46-month term of imprisonment.
Padilla-Garcia contends that the district court committed reversible
plain error by applying the COV enhancement based on his North Carolina
conviction of conspiracy to commit robbery, and he also contends that the
district court plainly erred by treating the North Carolina conspiracy-to-
commit-robbery conviction as an aggravated felony for purposes of 8 U.S.C.
§ 1326(b)(2). As to both of the claimed errors, the gravamen of Padilla-Garcia’s
argument is that, because proof of an overt act was not required under North
Carolina law, his conspiracy conviction was not one for generic “conspiracy”
within the meaning of U.S.S.G. § 2L1.2 or the relevant provisions of federal
immigration statutes.
To establish plain error, Padilla-Garcia must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but should do so only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id. To show
that an error was clear or obvious, “[a] defendant need not show that the
specific factual and legal scenario has been addressed but must at least show
error in the straightforward applications of case law. By contrast, an error is
not plain if it requires the extension of precedent.” United States v. Vargas-
Soto, 700 F.3d 180, 182 (5th Cir. 2012) (internal quotation marks and citations
omitted).
Padilla-Garcia asserts that the issues he raises are foreclosed by United
States v. Pascacio-Rodriguez, 749 F.3d 353, 367-68 (5th Cir. 2014), which
determined that a Nevada conviction for conspiracy to commit murder, which
likewise does not require an overt act, constituted a COV for purposes of the
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No. 14-40664
§ 2L1.2(b)(1)(A)(ii) enhancement. In Pascacio-Rodriguez, we rejected
arguments similar to those made by Padilla-Garcia, indicating that it was not
clear that this court’s precedent required application of the categorical
approach in discerning the elements of a conspiracy offense, and we cited
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012), for the
proposition that there was no need to find a meaning for “conspiracy” outside
of the Guidelines because Application Note 5 of § 2L1.2 definitively showed
that conspiracy offenses were intended for inclusion. Pascacio-Rodriguez, 749
F.3d at 366-67. In view of Pascacio-Rodriguez, Padilla-Garcia fails to establish
clear or obvious error on the part of the district court.
Although we affirm the district court’s judgment, summary disposition
is not appropriate. See United States v. Holy Land Found. for Relief & Dev.,
445 F.3d 771, 781 (5th Cir. 2006). Accordingly, we deny Padilla-Garcia’s
motion for summary disposition.
AFFIRMED; MOTION DENIED.
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