     Case: 09-20779 Document: 00511274433 Page: 1 Date Filed: 10/26/2010




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

                                                 FILED
                                                                          October 26, 2010
                                     No. 09-20779
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE LUIS RODRIGUEZ MARTINEZ, also known as Jose Luis Rodriguez, also
known as Jose Luis Rodriguez-Martinez,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-339-1


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jose Luis Rodriguez Martinez (Rodriguez) appeals the sentence imposed
following his conviction for illegal reentry after deportation under 8 U.S.C.
§ 1326. Rodriguez contends that the district court erred by imposing a 16-level
crime of violence enhancement based on his prior Texas conviction for sexual
assault of a child, which is a violation of Texas Penal Code § 22.011(a)(2). He
argues that this conviction does not constitute the enumerated offense of sexual


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-20779 Document: 00511274433 Page: 2 Date Filed: 10/26/2010

                                 No. 09-20779

abuse of a minor or statutory rape under the Guidelines because an offense
under § 22.011 can be committed against a victim who is only 16 years of age.
Rodriguez concedes that his argument is foreclosed and moves for summary
affirmance to preserve the issue for appeal.
      As Rodriguez concedes, his argument is foreclosed by United States v.
Castro-Guevarra, 575 F.3d 550 (5th Cir.), cert. denied, 130 S. Ct. 649 (2009).
Accordingly, his motion for summary affirmance is GRANTED and the judgment
of the district court is AFFIRMED.




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