     Case: 12-20421       Document: 00512202421         Page: 1     Date Filed: 04/09/2013




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

                                                                            FILED
                                                                            April 9, 2013
                                     No. 12-20421
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OLGA ARRELLANO-LOPEZ, also known as Olga Arellano,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-153-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Olga Arrellano-Lopez (Arrellano) appeals the sentence imposed following
her guilty plea conviction for being unlawfully present in the United States
following removal. Arrellano argues that the district court erred by applying a
16-level     enhancement       under      United     States     Sentencing      Guidelines
§ 2L1.2(b)(1)(A)(ii) based on a prior conviction for a crime of violence. She
maintains that her Texas conviction for kidnapping under TEX. PENAL CODE
§ 20.03(a) was not a conviction for a crime of violence because TEX. PENAL CODE

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20421     Document: 00512202421     Page: 2   Date Filed: 04/09/2013

                                  No. 12-20421

§ 20.03(a) does not have as an element the use, attempted use, or threatened use
of force and because TEX. PENAL CODE § 20.03(a) does not comport with the
contemporary, generic offense of kidnapping. We review the district court’s
interpretation or application of the Guidelines de novo, and its factual findings
for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      In United States v. Garcia-Gonzalez, 168 F. App’x 564, 565 (5th Cir. 2006),
we held that “[t]he elements of the Texas kidnapping offense are consistent with
the ordinary, contemporary, and common understanding of the term as defined
by Black’s Law Dictionary,” and we determined that the application of a 16-level
enhancement under § 2L1.2(b)(1)(A)(ii) based upon a conviction under TEX.
PENAL CODE § 20.03(a) was not plain error. In a subsequent published opinion,
we held that a conviction under a nearly identical New York kidnapping statute
was a conviction for a crime of violence under § 2L1.2(b)(1)(A)(ii). United States
v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th Cir. 2007). We have also described
Garcia-Gonzalez as “an unpublished case which held that the enumerated
offense of ‘kidnapping’ included a Texas statute that was nearly identical to the
New York statute and likewise lacked the requirement of risk of injury or
involuntary servitude.” United States v. Moreno-Florean, 542 F.3d 445, 453 (5th
Cir. 2008).
      Arrellano acknowledges the opinions in Garcia-Gonzalez and Moreno-
Florean. She asserts that Garcia-Gonzalez is not controlling because that case
was reviewed under the plain error standard and because the opinion was
unpublished. She maintains that this court misconstrued Garcia-Gonzalez in
Moreno-Florean for the same reasons.
      While Garcia-Gonzalez is an unpublished opinion, Iniguez-Barba and
Moreno-Florean are published opinions that resolve this issue against Arrellano.
See Iniguez-Barba, 485 F.3d at 791-93; Moreno-Florean, 542 F.3d at 453. As
Arrellano has not shown the existence of an intervening statutory change,

                                        2
    Case: 12-20421    Document: 00512202421   Page: 3   Date Filed: 04/09/2013

                               No. 12-20421

Supreme Court decision, or en banc decision of this court, we must follow
Iniguez-Barba and Moreno-Florean. See United States v. Snarr, 704 F.3d 368,
402 n.21 (5th Cir. 2013).
      AFFIRMED.




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