     Case: 10-10453     Document: 00511574751         Page: 1     Date Filed: 08/17/2011




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

                                                                            FILED
                                                                          August 17, 2011
                                     No. 10-10453
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL MENDEZ-RUBI,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-166-1


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Miguel Mendez-Rubi appeals the sentence imposed following his guilty
plea conviction for illegal reentry following deportation in violation of 8 U.S.C.
§ 1326. He contends that the district court plainly erred when it enhanced his
sentence based on a finding that his prior conviction for aggravated assault of
a peace officer in violation of TEX. PENAL CODE ANN. § 22.02(a)(2)(A) (1991) was
a crime of violence under 18 U.S.C. § 16 and, thus, an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C) and § 1326(b)(2). Because Mendez-Rubi did

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10453   Document: 00511574751      Page: 2   Date Filed: 08/17/2011

                                  No. 10-10453

not object to the aggravated felony enhancement in the district court, we review
for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005).
      A conviction for aggravated assault of a peace officer in violation of
§ 22.02(a)(2)(A) (1991) does not qualify as a crime of violence under § 16(a)
because the use of force was not an element of the offense. See United States v.
Villegas-Hernandez, 468 F.3d 874, 879, 882 (5th Cir. 2006). However, because
we have yet to decide whether such a conviction constitutes a crime of violence
under § 16(b) and precedent would have to be extended to compel the result
urged by Mendez-Rubi, the alleged error is not clear or obvious. See United
States v. Trejo, 610 F.3d 308, 319-20 (5th Cir. 2010). Accordingly, the error, if
any, is not plain. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      AFFIRMED.




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