     Case: 15-40022   Document: 00513369233        Page: 1   Date Filed: 02/04/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 15-40022                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                   February 4, 2016
UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellee

v.

ARTURO CASTANEDA-LOZOYA, also known as JOSE CASTANEDA-
LOZOYA,

             Defendant - Appellant



                Appeals from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Arturo Castaneda-Lozoya pled guilty to illegal reentry.                   He had
previously been convicted of a sexual assault. The district court determined
this prior conviction subjected Castaneda to a 20-year statutory maximum
sentence. Castaneda appeals, challenging the district court’s determination.
We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      Castaneda is a Mexican citizen. He and his parents entered the United
States without inspection when he was a child. In November 2005, he was
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                                  No. 15-40022
convicted in Texas of felony sexual assault and was sentenced to seven years
of deferred adjudication probation. Castaneda was deported to Mexico a year
later. Immigration and Customs Enforcement agents, however, encountered
Castaneda in Texas in June 2014. Castaneda admitted he illegally returned
to the United States in March 2007. He pled guilty to illegal reentry.
      Castaneda’s base offense level was eight pursuant to Section 2L1.2(a) of
the Sentencing Guidelines. He received a 16-level increase for being previously
deported after a conviction for a “crime of violence” under Section
2L1.2(b)(1)(A)(ii), as a result of his 2005 Texas conviction for sexual assault.
After a three-level reduction for acceptance of responsibility, his total offense
level was 21. Castaneda had three criminal history points, placing him in
criminal history category II. Therefore, with a total offense level of 21 and a
criminal history category of II, Castaneda’s range according to the Guidelines
was 41 to 51 months. The district court also determined that his earlier
deportation was after conviction for an aggravated felony, which meant the
statutory maximum for his new offense was 20 years. See 8 U.S.C. § 1326(b)(2).
The district court sentenced Castaneda to 41 months, followed by three years
of supervised release.
      Castaneda filed a timely notice of appeal, arguing the district court’s
determination that he had a prior aggravated felony conviction was in error.


                                  DISCUSSION
      The statutory maximum that was applied to Castaneda states that when
an alien “whose removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be fined under such title, imprisoned not
more than 20 years, or both.” 8 U.S.C. § 1326(b)(2). An aggravated felony is,
among other things, “a crime of violence . . . for which the term of imprisonment
[is] at least one year.” Id. § 1101(a)(43)(F). Castaneda argues that because he
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                                 No. 15-40022
was sentenced to seven years of deferred adjudication probation for his pre-
deportation offense, he was not imprisoned for at least one year. Therefore,
his prior Texas conviction was not an aggravated felony, precluding application
of the 20-year statutory maximum. Castaneda argues, instead, that he is
subject only to a ten-year statutory maximum.        See id. § 1326(b)(1).   He
contends that even though he was sentenced only to 41 months of
incarceration, the statutory maximum could have influenced the district
court’s sentence.
      We review the district court’s interpretation and 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). If an argument is raised
for the first time on appeal, we review for plain error. United States v. Duque-
Hernandez, 710 F.3d 296, 298 (5th Cir. 2013). Castaneda claims he made the
objection concerning aggravated felonies, and therefore de novo, not plain
error, review applies.    Castaneda objected on the basis that his Texas
conviction did not fit within the definition of a “crime of violence” under
Section 1101(a)(43)(F). That is, the elements of the Texas conviction did not
track the federal definition of “crime of violence.” On appeal, he argues that
Section 1101(a)(43)(F) does not apply because he was not imprisoned for at
least one year. Thus, while Castaneda stated an objection based on Section
1101(a)(43)(F), he did so on different grounds. That is insufficient to preserve
the issue. See United States v. Juarez, 626 F.3d 246, 253−54 (5th Cir. 2010).
      Plain error review therefore applies. Under plain error review: (1) “there
must be an error or defect . . . that has not been intentionally relinquished or
abandoned”; (2) “the legal error must be clear or obvious, rather than subject
to reasonable dispute”; (3) “the error must have affected the appellant’s
substantial rights”; and (4) “if the above three prongs are satisfied, [we have]
the discretion to remedy the error—discretion which ought to be exercised only
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                                 No. 15-40022
if the error ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Puckett v. United States, 556 U.S. 129, 135 (2009)
(alternation in original) (emphasis added).
      We start our review with a concession by the Government. It agrees
with Castaneda that the district court erred in analyzing whether the prior
conviction was for an aggravated felony. The category of “aggravated felony”
considered by the district court was that of a crime of violence for which the
term of imprisonment actually received was at least one year. See 8 U.S.C. §
1101(a)(43)(F); United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.
2001) (“[T]he enhancement does not apply ‘when a defendant is directly
sentenced to probation.’”).   Castaneda received only deferred adjudication
probation, and not a prison sentence.
      As an alternative, the Government argues the Texas conviction should
be considered rape, which is another category of aggravated felony. We may
affirm on any ground supported by the record. United States v. Jackson, 453
F.3d 302, 308 n.11 (5th Cir. 2006).
      To determine whether Castaneda’s offense can be categorized as rape
under federal law, we would need to examine the Texas statute under which
he was convicted and compare it to the federal statutory definition of rape. See
Perez-Gonzalez v. Holder, 667 F.3d 622, 625 (5th Cir. 2012). The Texas statute
contains alternative means of committing the offense, some of which likely
would not be rape under the federal definition. See Tex. Penal Code Ann. §
22.011. When a statute contains alternative methods for commission of the
offense, some of which would not be an aggravated felony, we apply what is
called the modified categorical approach. Perez-Gonzalez, 667 F.3d at 625. We
consider certain limited evidence such as the charging instrument in order to
narrow the offense. Id. If after review of such materials we can conclude that
the conviction “necessarily” involved those elements that constitute an
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                                 No. 15-40022
aggravated felony, then the Government has met its burden to prove the prior
conviction was for an aggravated felony. Id.
      We find it unnecessary to analyze the intricacies of the modified
categorical approach. Even if variations in the Texas statutory definitions
ultimately lead to the conclusion that Castaneda’s offense was not an
aggravated felony, he still has not shown plain error in the sentence.
      Under the third prong of plain error review, Castaneda must show the
error affected his substantial rights. Puckett, 556 U.S. at 135. If the district
court erred, it was in concluding that the statutory maximum for the offense
was twenty years when it should have been ten. Castaneda’s sentence was for
41 months of imprisonment. He argues that the 20-year maximum “could well
have influenced the district court’s selection of sentence.”     As evident by
Castaneda’s use of the phrase “could well have,” Castaneda is unable to point
to any evidence suggesting this was in fact the case. There is also no evidence
in the record to suggest this.
      In an unpublished case, we rejected a similar argument because the
defendant was unable to point to any evidence in the record. See United States
v. Ortiz-Cuevas, 516 F. App’x 325 (5th Cir. 2013). We agree with that panel.
Castaneda’s speculation does not support a finding of reversible plain error.
      AFFIRMED.




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