     Case: 08-50580     Document: 00511036560          Page: 1    Date Filed: 02/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 26, 2010
                                     No. 08-50580
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARIO ENRIQUE GONZALEZ-DAVILA,


                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 2:07-CR-918-ALL




Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Mario Enrique Gonzalez-Davila appeals the sentence imposed following
his guilty-plea conviction for being an alien found unlawfully in the United
States after previously having been removed. See 8 U.S.C. § 1326. He contends
the Government failed to provide sufficient evidence of a prior conviction to


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 08-50580

support the 16-level enhancement to his Sentencing Guidelines offense level,
imposed under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (prior conviction of crime of violence).
Gonzalez also asserts he was denied effective assistance of counsel at sentencing
because his attorney failed to object to this enhancement. (Although Gonzalez
has completed his term of imprisonment, his appeal is not moot because he has
not been deported and is currently serving a term of supervised release. See
United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006).)
      Because Gonzalez did not object to the enhancement in the district court,
review is only for plain error “based on the record before us as supplemented
with the state-court documents” related to Gonzalez’ prior conviction.          See
United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th Cir.), cert. denied, 129
S.Ct. 353 (2008). Reversible plain error exists where a clear or obvious error
affects the defendant’s substantial rights. E.g., United States v. Baker, 538 F.3d
324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). Even then, we have discretion to
correct such an error and, generally, will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d
at 332.
      Guideline § 2L1.2 provides for a 16-level increase if the defendant has been
previously convicted of a “crime of violence”. U.S.S.G. § 2L1.2(b)(1)(A)(ii). State-
court documents for Gonzalez’ prior conviction, with which the Government has
supplemented the record on appeal, show that he pleaded nolo contendere to a
violation of T EX. P ENAL C ODE § 21.11(a)(1) (Indecency With a Child – Contact).
This constitutes a felony of the second degree. See § 21.11(d). A conviction
under this subsection constitutes a crime of violence under § 2L1.2. See United
States v. Najera-Najera, 519 F.3d 509, 512 (5th Cir.), cert. denied, 129 S. Ct. 139
(2008). By providing the state-court documents, the Government has met its
burden of proving by a preponderance of relevant and reliable evidence that
Gonzalez was convicted of a crime of violence. See United States v. Rodriguez,

                                         2
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                                 No. 08-50580

523 F.3d 519, 524 (5th Cir. 2008). Obviously, Gonzalez has failed to show plain
error.
         The record is not sufficiently developed to permit consideration of
Gonzalez’ ineffective-assistance claim. See United States v. Higdon, 832 F.2d
312, 313–14 (5th Cir. 1987) (“The general rule in this circuit is that a claim of
ineffective assistance of counsel cannot be resolved on direct appeal when the
claim has not been raised before the district court since no opportunity existed
to develop the record on the merits of the allegations.”). Restated, this is not one
of the “rare cases” where it is appropriate to resolve such a claim on direct
appeal. See id. at 314. Accordingly, we decline to address the merits of the
ineffective-assistance claim. See id.
         AFFIRMED.




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