     Case: 15-20119      Document: 00513743487         Page: 1    Date Filed: 11/02/2016




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

                                    No. 15-20119                              FILED
                                  Summary Calendar                     November 2, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RODOLFO HERNANDEZ ACOSTA, also known as Rodolfo Acosta, also known
as Rodolfo Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CR-487-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Rodolfo Hernandez Acosta appeals his conviction and sentence for illegal
reentry pursuant to 8 U.S.C. § 1326(a) and (b)(1). He argues that the district
court erred by imposing an eight-level aggravated felony enhancement under
U.S.S.G. § 2L1.2(b)(1)(C) based on his 1993 Virginia misdemeanor conviction
for sexual battery. Hernandez Acosta contends that because his sexual battery



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20119    Document: 00513743487     Page: 2    Date Filed: 11/02/2016


                                  No. 15-20119

conviction was a misdemeanor under Virginia state law it cannot constitute an
aggravated felony under § 2L1.2(b)(1)(C). He further asserts that his sexual
battery    conviction   does not constitute an        aggravated felony under
§ 2L1.2(b)(1)(C) because it fails to satisfy the definition of a crime of violence
under 18 U.S.C. § 16.
       Although Hernandez Acosta argues that § 1326(b) is unconstitutional on
its face and as applied because it does not require the fact of a prior felony or
aggravated felony conviction to be charged in an indictment and proved beyond
a reasonable doubt, he concedes that this argument is foreclosed but raises it
to preserve it for further review. See United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007).
       Because the foregoing issues were not raised in the district court, our
review is limited to plain error. See United States v. Peltier, 505 F.3d 389, 391
(5th Cir. 2007). To establish plain error, Hernandez Acosta must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       Hernandez Acosta’s assertion that his misdemeanor conviction cannot
qualify as an aggravated felony under § 2L1.2(b)(1)(C) is without merit. See
United States v. Ramirez, 731 F.3d 351, 354-57 (5th Cir. 2013) (“Ramirez
maintains that for a prior conviction to constitute an aggravated felony, the
prior conviction must actually be a felony. Under this logic, his misdemeanor
conviction cannot be considered an aggravated felony. While his argument is
seemingly persuasive in its simplicity, every circuit court to have considered
whether a misdemeanor conviction can constitute an aggravated felony for



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                                      No. 15-20119

purposes of § 1101(a)(43), including our court, has held the contrary.”); United
States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002). In addition, this
court     has   rejected    Hernandez    Acosta’s    argument    that   §   16(b)   is
unconstitutionally vague on its face in light of the Supreme Court’s holding in
Johnson v. United States, 135 S. Ct. 2551 (2015).              See United States v.
Gonzalez-Longoria, 831 F.3d 670, 675-79 (en banc), petition for cert. filed (Sept.
29, 2016) (No. 16-6259).        Relatedly, Hernandez Acosta has failed to cite
pertinent authority demonstrating plain error with respect to the district
court’s    imposition      of   the   aggravated     felony    enhancement     under
§ 2L1.2(b)(1)(C). See United States v. Peralta-Reyes, 533 F. App’x 372, 376 (5th
Cir. 2013) (unpublished) (finding no plain error where the district court
determined that Colorado’s sexual assault statute was a crime of violence
under § 16(b) because “non-consent of the victim” was an element of the
Colorado crime); Zaidi v. Ashcroft, 374 F.3d 357, 361 (5th Cir. 2004) (holding
that an Oklahoma sexual battery conviction was a crime of violence under
§ 16(b), because “the non-consent of the victim is the touchstone for
determining whether a given offense involves a substantial risk that physical
force may be used in the commission of the offense.” (internal quotation marks
and citation omitted)); see also United States v. Ramos Ceron, 775 F.3d 222,
226 (5th Cir. 2014) (concluding that a defendant could not demonstrate clear
or obvious error in the “absence of case law unequivocally supporting” his
position on appeal).
        AFFIRMED.




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