Case: 14-41013 Document: 00513086220 Page: 1 Date Filed: 06/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-41013 FILED
Summary Calendar June 19, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO RAMOS-MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:14-CR-240
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Mario Ramos-Martinez challenges his 24-month sentence for illegal
presence in the United States following deportation. He contends that the
district court plainly erred by imposing a 12-level crime of violence
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his conviction for
third degree criminal sexual conduct under Michigan Compiled Laws
Annotated § 750.520d(1)(a) (1992). He argues that the Michigan offense does
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-41013
not comport with the generic, contemporary meaning of the enumerated crime
of violence of “sexual abuse of a minor” because the statute of conviction lacked
an age differential of at least four years between the perpetrator and the
victim. As he concedes, however, this argument is foreclosed by our decision
in United States v. Rodriguez, 711 F.3d 541, 562 n.28 (5th Cir. 2013) (en banc).
He raises it to preserve it for possible further review.
Additionally, Ramos-Martinez contends that, because a defendant was
punishable under § 750.520d(1)(a) without regard to whether he knew or
should have known that the other person was younger than 16 years old, the
offense did not require that the defendant have taken undue or unfair
advantage of the minor and does not comport with the generic, contemporary
meaning of “sexual abuse.” Because Ramos-Martinez did not object to the
enhancement in the district court, review is for plain error. See United States
v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). “The doctrine of plain
error serves powerful institutional interests, including securing the role of the
United States District Court as the court of first instance, as opposed to a body
charged to make recommendations to appellate courts.” United States v. Ellis,
564 F.3d 370, 378 (5th Cir. 2009). To demonstrate plain error, Ramos-
Martinez must show a forfeited error that is clear or obvious that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). An
error is not clear or obvious if it is subject to reasonable debate. Id.; Ellis, 564
F.3d at 377-78. If Ramos-Martinez makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See Puckett, 556 U.S. at
135.
In light of Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014), and
Ramos-Garcia v. Holder, 483 F. App’x 926, 928-29 (5th Cir. 2012), the
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No. 14-41013
determination of whether the Michigan offense comports with the generic,
contemporary meaning of “sexual abuse” is subject to reasonable debate.
Accordingly, any error by the district court was not “clear or obvious,” and
Ramos-Martinez cannot meet his burden of showing plain error. See Puckett,
556 U.S. at 135; see also Ellis, 564 F.3d at 377-78 (noting that “the second
prong of plain error analysis is particularly important” and suggesting that,
unless a crime of violence error can be identified simply by considering the
“elements of the crime” or “other straightforward applications of case law,” it
is not clear or obvious). We need not consider Ramos-Martinez’s argument that
the offense does not constitute the enumerated offense of statutory rape or the
Government’s argument that the offense constitutes a forcible sex offense
under § 2L1.2.
The judgment of the district court is AFFIRMED.
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