USA v. Arnoldo Velasquez-Contreras, No. 13-41342 (5th Cir. 2014)

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Case: 13-41342 Document: 00512762218 Page: 1 Date Filed: 09/09/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-41342 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 9, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARNOLDO VELASQUEZ-CONTRERAS, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:13-CR-563-1 Before PRADO, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * Arnoldo Velasquez-Contreras pleaded guilty to one count of being unlawfully present in the United States following a deportation subsequent to being convicted of an aggravated felony, and he was sentenced to 46 months in prison and three years of supervised release. On appeal, Velasquez-Contreras contends that the district court erred in considering a New York Certificate of Disposition to determine whether his 2012 attempted second-degree assault 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-41342 Document: 00512762218 Page: 2 Date Filed: 09/09/2014 No. 13-41342 conviction constituted a crime of violence warranting a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). A Certificate of Disposition from New York is a judicial record under state law and contains sufficient indicia of reliability to be used as rebuttable evidence that a defendant was convicted under a specific statutory subsection. United States v. Neri-Hernandes, 504 F.3d 587, 591-92 (5th Cir. 2007). The Certificate of Disposition reflects that VelasquezContreras was convicted under N.Y. PENAL LAW § 120.05(2) (McKinney 2012), which constitutes a crime of violence. See id. Velasquez-Contreras concedes that his arguments against the use of the Certificate of Disposition are foreclosed by Neri-Hernandes, but he seeks to preserve the issue for further review. The appellant s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2

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