     Case: 14-50327      Document: 00512883995         Page: 1    Date Filed: 12/29/2014




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

                                    No. 14-50327                                  FILED
                                  Summary Calendar                        December 29, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

ANGEL LEONEL GUZMAN-MATIAS,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-559-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Angel Leonel Guzman-Matias appeals the sentence imposed following
his conviction for illegal reentry into the United States. He contends that the
district court erred in applying the crime-of-violence (COV) enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his 2008 California conviction for
infliction of corporal injury on a spouse or cohabitant. He first argues that the
enhancement was erroneous because his presentence report (PSR) contained


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50327     Document: 00512883995      Page: 2   Date Filed: 12/29/2014


                                  No. 14-50327

conflicting dates regarding when his California offense occurred and lacked
information showing that he possessed the requisite mens rea for the offense.
He also argues that his California offense does not categorically qualify as a
COV because it could have been committed merely by minimal offensive
touching.
      In reviewing challenges to a COV enhancement that were preserved in
the district court, we review the district court’s factual findings for clear error
and its interpretation and application of the Sentencing Guidelines de novo.
United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014). “A factual finding
is not clearly erroneous if it is plausible in light of the record as a whole.”
United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Even assuming
that Guzman-Matias’s instant arguments were preserved, the arguments are
unavailing.
      The Government has filed an unopposed motion to supplement the
record on appeal with a copy of the plea agreement from Guzman-Matias’s
California case. The motion to supplement the record is GRANTED. The plea
agreement indicates that Guzman-Matias agreed to plead guilty to an
amended third count for corporal injury to a spouse or cohabitant, an offense
under CAL. PENAL CODE § 273.5(a). We conclude that the district court’s
finding that such conviction did in fact occur is not clearly erroneous. To the
extent Guzman-Matias wishes to challenge the validity of his California
conviction on the ground that the stipulated factual basis in that case did not
include the requisite mens rea, he may not do so collaterally here. See United
States v. Longstreet, 603 F.3d 273, 277 (5th Cir. 2010).
      In his second argument, Guzman-Matias contends that his conviction
under § 273.5(a) does not qualify as a COV because it could have been
committed merely by offensive touching, no matter how slight the touching.



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                                  No. 14-50327

According to Guzman-Matias, the force required for a COV therefore was not
an element of an offense under § 273.5(a).
      Guzman-Matias has not shown that a conviction under § 273.5(a) for
non-violent, light touching is a realistic probability, rather than a mere
theoretical possibility. See United States v. Carrasco-Tercero, 745 F.3d 192,
197-98 (5th Cir. 2014) (“Theoretical applications of a statute to conduct that
would not constitute a crime of violence do not demonstrate that the statutory
offense is categorically not a crime of violence.”). To the contrary, we have held
that an offense under § 273.5(a) categorically qualifies as a COV under § 2L1.2
because it has as an element the use, attempted use, or threatened use of
physical force against the person of another. United States v. Cruz-Rodriguez,
625 F.3d 274, 276 (5th Cir. 2010) (per curiam) (citing with approval United
States v. Gutierrez, 371 F. App’x 550, 551 (5th Cir. 2010)); see § 2L1.2, cmt.
n.1(B)(iii). Guzman-Matias has not shown that the district court erred in
applying the COV enhancement.
      The Government has moved for summary affirmance in this case.
Summary affirmance is not appropriate, and the Government’s motion is
DENIED. See United States v. Holy Land Found. for Relief and Dev., 445 F.3d
771, 781 (5th Cir. 2006). The Government’s alternative motion for an extension
of time to file a brief is also DENIED, as Guzman-Matias is not entitled to relief
and further briefing is unnecessary.
      The judgment of the district court is AFFIRMED.




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