     Case: 11-50046     Document: 00511647104         Page: 1     Date Filed: 10/27/2011




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

                                                                            FILED
                                                                         October 27, 2011
                                     No. 11-50046
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE LUIS PASCUAL-DURAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2380-1


Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        Jose Luis Pascual-Duran pleaded guilty to being illegally present in the
United States following deportation and to false impersonation in immigration
matters. He was sentenced to 46 months of imprisonment and three years of
supervised release on each count, to be served concurrently.
        Pascual-Duran argues that the district court erred in imposing a 16-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(iv) on the basis that his prior
conviction under Colorado Revised Statute § 18-6-403(3)(b.5) constituted a “child

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50046   Document: 00511647104      Page: 2   Date Filed: 10/27/2011

                                  No. 11-50046

pornography offense.” He maintains that the Colorado statue of conviction is
broader than the federal child pornography statutes set forth in § 2L1.2 because
the Colorado statue criminalizes the possession of visual depictions that portray
minors observing explicit sexual conduct, whereas the federal statutes prohibit
only those visual depictions that portray minors actually engaging in sexually
explicit conduct. Pascual-Duran properly concedes that his argument is subject
to review for plain error because he did not raise the instant argument before the
district court.
      To establish plain error, Pascual-Duran must identify a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Whether the conviction at issue constituted
a “child pornography offense” for purposes of § 2L1.2(b)(1)(A)(iv) is an issue of
first impression in this circuit. Thus, if any error occurred, it was not clear or
obvious and does not warrant relief on plain error review. See United States v.
Ellis, 564 F.3d 370, 376-78 (5th Cir. 2009); Puckett, 129 S. Ct. at 1429.
      Pascual-Duran also argues that his sentence is unreasonable because the
district court failed to consider the unwarranted disparity that exists between
him and defendants who were sentenced in jurisdictions in which “fast track”
programs are available. As Pascual-Duran correctly concedes, this argument is
foreclosed. See United States v. Gomez-Herrera, 523 F.3d 554, 559-64 (5th Cir.
2008); United States v. Lopez-Velasquez, 526 F.3d 804, 808 (5th Cir. 2008).
      AFFIRMED.




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