USA v. Francisco Lugo-Gutierrez, No. 12-41075 (5th Cir. 2013)

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Case: 12-41075 Document: 00512346667 Page: 1 Date Filed: 08/20/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-41075 Conference Calendar August 20, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FRANCISCO LUGO-GUTIERREZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:12-CR-539-1 Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges. PER CURIAM:* Francisco Lugo-Gutierrez appeals the 60-month sentence imposed following his conviction of being present unlawfully in the United States following deportation. He argues that the district court erred by imposing a 16level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior conviction for indecency with a child by sexual contact under § 21.11(a)(1) of the Texas Penal Code. He concedes, however, that his arguments are foreclosed by our decision in United States v. Rodriguez, 711 F.3d 541, 562-63 (5th Cir. 2013) * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41075 Document: 00512346667 Page: 2 Date Filed: 08/20/2013 No. 12-41075 (en banc), petition for cert. filed (June 6, 2013) (No. 12-10695). Accordingly, the judgment of the district court is AFFIRMED. 2