UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30809
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ERICK FRANCISCO SAMAYOA-GONZALES,
also known as Eric Samayoa,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CR-14)
August 25, 1999
Before DeMOSS and PARKER, Circuit Judges, and LAKE,* District
Judge.
PER CURIAM:**
Appellant-defendant, Erick Francisco Samayoa-Gonzales
(“defendant”) pleaded guilty to unlawful entry into the United
States following deportation in violation of 8 U.S.C. § 1326(b)(2).
In this appeal we are asked to decide whether the district court
erred in using the defendant’s prior juvenile adjudication for
second degree battery as a basis for enhancing his sentence under
8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2. As written, those
*
District Judge of the Southern District of Texas, sitting
by designation.
** 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this opinion should not be published and is not precedent except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.
provisions enhance a defendant’s offense level by 16 levels if the
defendant unlawfully enters the United States after having been
previously “convicted” of an aggravated felony.1 The precise issue
we must address in this appeal is whether a juvenile adjudication
in Louisiana qualifies as a “conviction” under those enhancement
provisions.2 To the best of our knowledge, it is an issue of first
impression in this Circuit and in the United States Court of
Appeals generally.
The defendant in this case failed to properly raise this issue
before the district court.3. The defendant did not file formal
1
U.S.S.G. § 2L1.2 provides in relevant part:
(1) If the defendant previously was deported
after a criminal conviction, or if the
defendant unlawfully remained in the United
States following a removal order issued after
a criminal conviction, increase as follows (if
more than one applies, use the greater):
(A) If the conviction was for an
aggravated felony, increase by 16 levels.
U.S.S.G. § 2L1.2.
2
Though the defendant concedes that a conviction for
second degree battery under Louisiana law would normally qualify as
a conviction for an “aggravated felony” under the enhancement
provisions, he asserts that an “adjudication of delinquency” in
juvenile court is not a cognizable conviction under § 1326(b)(2)
and § 2L1.2.
3
The record in this case reflects that the applicability
of a 16 level enhancement under U.S.S.G. § 2L1.2 was suggested by
the probation department in its presentence report. After that
report was completed, the defendant filed a presentence brief in
which he moved the court to downwardly depart on the ground that
the minimum sentence was too severe, and that he was truly
remorseful for his misdeeds.
2
objections to the presentence report.4
. The defendant eventually raised this objection in a motion to
correct sentence pursuant to Rule 35(c) of the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P 35(c). The district court
denied the motion.5 Thus, we must review his claim under our plain
error standard, United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc).6 Applying that stringent standard to
At no point, however, did the defendant challenge the proposed
enhancement under § 2L1.2 based on his prior juvenile adjudication.
In fact, in his presentence brief
the defendant expressly acknowledged the applicability of that
provision:
Pursuant to 8 U.S.C. Section 1326, the
defendant is subject to a maximum sentence of
20 years and a maximum fine of $250,000.
Given his conviction for car theft and
aggravated battery, the defendant is
considered to be an “aggravated felon” for
purposes of 8 U.S.C. § 1326 . . . . The
defendant would respectfully suggest that
there are no mitigating statutes or case law
in his favor in this matter. Also, addressing
the court’s question as to the [sic] whether
the defendant’s youth, and his conviction of
an aggravated felony as a juvenile, are
mitigating factors, the defendant respectfully
concedes that there is no case law or other
statute law that would militate against the
imposition of such a sentence as recommended
in the Federal Sentencing Guidelines.
Then, at the subsequent sentencing hearing, the defendant raised no
objections to the presentence report and, more importantly, raised
no complaint to the use of his juvenile adjudication to enhance his
sentence under § 2L1.2.
6
To prevail on a claim raised for the first time on
appeal, an appellant must show (1) the existence of actual error;
(2) that the error was plain; and (3) that it affects substantial
rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc). In Calverley we explained plain error in the
3
the facts of this case, we cannot conclude that the district
court’s ruling was plainly erroneous.
AFFIRMED.
following terms: “[p]lain is synonymous with ‘clear’ or ‘obvious,’
and ‘[a]t a minimum,’ contemplates an error which was ‘clear under
current law at the time of trial.’" Id. at 162-63.
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