USA v. Carlos Alvarez-Mora, No. 12-50941 (5th Cir. 2013)

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Case: 12-50941 Document: 00512335380 Page: 1 Date Filed: 08/08/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50941 Summary Calendar August 8, 2013 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CARLOS ALVAREZ-MORA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:12-CR-187-1 Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM:* Carlos Alvarez-Mora appeals the sentence imposed for his guilty plea conviction for illegal reentry. He was sentenced to 70 months of imprisonment and three years of supervised release. In his first claim of error, he contends that the district court erred in enhancing his sentence for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his California conviction for assault with a deadly weapon. We need not determine whether Alvarez-Mora preserved this claim of error and whether * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50941 Document: 00512335380 Page: 2 Date Filed: 08/08/2013 No. 12-50941 the state court documents he relies on are of the type approved in Shepard v. United States, 544 U.S. 13, 16 (2005), because this claim of error is patently without merit. Alvarez-Mora mistakenly contends that his prior conviction is not a crime of violence as defined by § 2L1.2 because his conviction is not a serious or violent felony as defined by California law. He pleaded guilty to count three of an information that charged him with committing assault with a deadly weapon in violation of California Penal Code § 245(a)(1) by willfully and unlawfully assaulting the victim with a knife. See CAL. PENAL CODE § 245(a)(1) (2007). We have held that a conviction under this statute is categorically the enumerated crime of violence offense of aggravated assault. United States v. Sanchez-Ruedas, 452 F.3d 409, 412-14 (5th Cir. 2006). Thus, he has failed to show that the district court erred, plainly or otherwise, in enhancing his sentence for a crime of violence. Next, he contends that the district court unconstitutionally relied on facts not charged or proved beyond a reasonable doubt in finding that he had a prior conviction for a crime of violence. The district court did not commit any constitutional error; Alvarez-Mora was convicted and sentenced under the advisory sentencing regime, and the facts relied on by the district court did not increase the statutory maximum sentence. See United States v. Thompson, 454 F.3d 459, 467-68 (5th Cir. 2006). The judgment of the district court is AFFIRMED. 2