USA v. Oscar Mata-Alvarez, No. 15-41504 (5th Cir. 2017)

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This opinion or order relates to an opinion or order originally issued on June 21, 2016.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________ No. 15-41504 Conference Calendar ___________________ UNITED STATES OF AMERICA, United States Court of Appeals Fifth Circuit FILED October 19, 2017 Lyle W. Cayce Clerk Plaintiff - Appellee v. OSCAR MATA-ALVAREZ, Defendant - Appellant _______________________ Appeal from the United States District Court for the Southern District of Texas, McAllen _______________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before JONES, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: ∗ We reconsider this case on remand from the Supreme Court in light of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). Defendant Oscar MataAlvarez did not object to his enhanced sentence below, so we review only for plain error. See United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ∗ No. 15-41504 Under this court’s precedent, indecency with a child involving sexual contact “is a crime of violence because it entails a substantial risk that physical force may be used against the victim.” United States v. Velazquez-Overa, 100 F.3d 418, 419 (5th Cir. 1996). Given the gravity of Mata-Alvarez’s offense—his victim was seven-years old—the sentence of 48 months does not seriously “affect[] the fairness, integrity or public reputation of judicial proceedings.” See United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). Accordingly, we hold that the district court did not plainly err. IT IS ORDERED that the appellant’s opposed motion to summarily vacate the district court judgment of sentence is DENIED. IT IS FURTHER ORDERED that the appellant’s opposed motion to remand the case to the district court for resentencing in light of EsquivelQuintana v. Sessions, 137 S. Ct. 1562 (2017) is DENIED. IT IS FURTHER ORDERED that the appellant’s opposed motion to issue the mandate forthwith is DENIED. Certified as a true copy and issued as the mandate on Nov 07, 2017 Attest: Clerk, U.S. Court of Appeals, Fifth Circuit 2