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

                                                                  FILED
                                                                January 21, 2009
                                No. 07-40143
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ADELMO ISIDRO ROSALES-VELASQUEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:06-CR-1106-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Adelmo Isidro Rosales-Velasquez (Rosales) challenges his 63-month
sentence for illegally reentering the United States following removal. He asserts
that the district court plainly erred by entering a judgment reflecting that he
was convicted under 8 U.S.C. § 1326(b)(2) when he did not have a prior
conviction that qualified as an “aggravated felony.”




      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-40143

      Rosales correctly concedes that review is for plain error. See FED. R. CRIM.
P. 52(b); United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007), cert. denied,
128 S.Ct. 2959 (2008). To show plain error, he must show an error that is clear
or obvious and that affects his substantial rights. See United States v. Baker,
538 F.3d 324, 332 (5th Cir. 2008). “An error affects substantial rights if it
affect[s] the outcome of the district court proceedings.” Id. at 333 (internal
quotation marks omitted). If Rosales makes such a showing, we have the
discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      The maximum penalty for unlawful reentry of an alien whose removal was
subsequent to a prior felony conviction is 10 years. § 1326(b)(1). The maximum
penalty for unlawful reentry of an alien whose removal was subsequent to a
prior aggravated felony conviction is 20 years. § 1326(b)(2). An “aggravated
felony” is defined in relevant part as a crime of violence for which the
punishment is no less than one year of imprisonment. 8 U.S.C. § 1101(a)(43)(F).
      Rosales’s prior felony conviction for robbery is not an “aggravated felony”
for purposes of § 1326(b)(2) because he was sentenced to only 90 days. See
§ 1101(a)(43)(F). Accordingly, the district court committed a clear or obvious
error when it entered a judgment reflecting that he was convicted pursuant to
§ 1326(b)(2). See United States v. Campos, 277 F. App’x 505, 506 (5th Cir. 2008).
However, Rosales fails to show that the error affected his substantial rights
because there is no indication in the record that the district court’s sentencing
determination was influenced by an incorrect understanding of the statutory
maximum sentence. Moreover, his sentence falls below the statutory maximum
of 10 years under the correct subsection of § 1326(b). As a result, there was no
reversible plain error. See Baker, 538 F.3d at 333. The judgment, however, is
modified in accordance with this opinion to reflect a conviction pursuant to
§ 1326(b)(1). See United States v. Castro-Trevino, 464 F.3d 536, 543 n.16, 547
(5th Cir. 2006).

                                         2
                                  No. 07-40143

       Rosales also asserts that the district court plainly erred by enhancing his
sentence under U.S.S.G. § 2L1.2. He asserts that the court relied solely upon the
presentence report to determine that his prior robbery offense was a crime of
violence when the definition of his robbery offense is broader than the ordinary,
contemporary, and common meaning of the enumerated offense of robbery under
§ 2L1.2. The Government asserts that Rosales waived any objection to the
enhancement.
       “[W]aiver is the intentional relinquishment or abandonment of a known
right.” United States v. Olano, 507 U.S. 725, 733 (1993)(internal quotation
marks omitted).     An attorney may waive his client’s objection under the
Guidelines so long as the record suggests that counsel made a knowing,
conscious choice to forgo the objection. See United States v. Arviso-Mata, 442
F.3d 382, 384 (5th Cir. 2006). Waiver extinguishes any error by the district
court, Olano, 507 U.S. at 733, because the court cannot be expected to override
the intentions of defense counsel and to assert a right on the defendant’s behalf
sua sponte.    United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999).
Counsel’s statement to the court during sentencing that he had discussed the
crime of violence enhancement with the probation officer, reviewed the
applicable caselaw, and determined that Rosales’s prior offense was “sufficient
to enhance him the 16 levels” constituted waiver. See Arviso-Mata, 442 F.3d at
384.
       Lastly, Rosales asserts that he received ineffective assistance of counsel
because his attorney failed to object to the application of § 1326(b)(2) and to the
crime of violence enhancement. Because the record has not been developed
sufficiently for us to evaluate this claim fully, we decline to address it on direct
appeal. See United States v. Gordon, 346 F.3d 135, 136-37 (5th Cir. 2003). The
judgment of the district court is AFFIRMED AS MODIFIED.




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