     Case: 12-41075       Document: 00512346667         Page: 1     Date Filed: 08/20/2013




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

                                                                            FILED
                                                                          August 20, 2013
                                     No. 12-41075
                                  Conference Calendar                      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 16-
level 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.




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