Case: 15-10047 Document: 00513200615 Page: 1 Date Filed: 09/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10047 FILED
Summary Calendar September 21, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE RODRIGUEZ-MARTINEZ, also known as Jose Martinez Rodriguez, also
known as Emmanuel Rodriguez-Barrera,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CR-309
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose Rodriguez-Martinez pleaded guilty to illegal reentry after
deportation and was sentenced to 52 months of imprisonment with no term of
supervised release. He appeals his sentence, arguing that the district court
plainly erred in applying the 16-level enhancement under U.S.S.G. § 2L1.2
based on a prior conviction for a crime of violence. Rodriguez-Martinez
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10047 Document: 00513200615 Page: 2 Date Filed: 09/21/2015
No. 15-10047
concedes that the plain error standard of review applies because he did not
preserve this issue by objection in the district court. See Puckett v. United
States, 556 U.S. 129, 134-35 (2009).
The Government has the burden of proving “by a preponderance of the
relevant and sufficiently reliable evidence the facts necessary to support the
adjustment.” See United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir.
1997) (internal quotation omitted). The issue we must decide is whether the
documents submitted by the Government are sufficient to prove the fact of
Rodriguez-Martinez’s offense of conviction, whether it was assault with a
deadly weapon under Texas Penal Code § 22.02, which is a crime of violence,
or whether it was simple assault under Texas Penal Code § 22.01, which is not
a crime of violence.
The district court relied on the order of deferred adjudication, the judicial
confession, and the order adjudicating guilt. The documents relied on by the
district court were reliable and sufficient to prove by a preponderance of the
evidence that Rodriguez-Martinez was previously convicted of aggravated
assault with a deadly weapon, a crime of violence. Rodriguez-Martinez has
failed to show a clear or obvious error in the district court’s conclusion that he
committed a crime of violence and so has failed to show that the district court
plainly erred. See United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir.
2008).
AFFIRMED.
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