Case: 11-50046 Document: 00511647104 Page: 1 Date Filed: 10/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2011
No. 11-50046
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS PASCUAL-DURAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-2380-1
Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
Jose Luis Pascual-Duran pleaded guilty to being illegally present in the
United States following deportation and to false impersonation in immigration
matters. He was sentenced to 46 months of imprisonment and three years of
supervised release on each count, to be served concurrently.
Pascual-Duran argues that the district court erred in imposing a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iv) on the basis that his prior
conviction under Colorado Revised Statute § 18-6-403(3)(b.5) constituted a “child
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50046 Document: 00511647104 Page: 2 Date Filed: 10/27/2011
No. 11-50046
pornography offense.” He maintains that the Colorado statue of conviction is
broader than the federal child pornography statutes set forth in § 2L1.2 because
the Colorado statue criminalizes the possession of visual depictions that portray
minors observing explicit sexual conduct, whereas the federal statutes prohibit
only those visual depictions that portray minors actually engaging in sexually
explicit conduct. Pascual-Duran properly concedes that his argument is subject
to review for plain error because he did not raise the instant argument before the
district court.
To establish plain error, Pascual-Duran must identify a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Whether the conviction at issue constituted
a “child pornography offense” for purposes of § 2L1.2(b)(1)(A)(iv) is an issue of
first impression in this circuit. Thus, if any error occurred, it was not clear or
obvious and does not warrant relief on plain error review. See United States v.
Ellis, 564 F.3d 370, 376-78 (5th Cir. 2009); Puckett, 129 S. Ct. at 1429.
Pascual-Duran also argues that his sentence is unreasonable because the
district court failed to consider the unwarranted disparity that exists between
him and defendants who were sentenced in jurisdictions in which “fast track”
programs are available. As Pascual-Duran correctly concedes, this argument is
foreclosed. See United States v. Gomez-Herrera, 523 F.3d 554, 559-64 (5th Cir.
2008); United States v. Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir. 2008).
AFFIRMED.
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