     Case: 12-51258      Document: 00513002666         Page: 1    Date Filed: 04/13/2015




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

                                    No. 12-51258                                    FILED
                                  Summary Calendar                              April 13, 2015
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS LOPEZ-EUCEDA, also known as Luis Miguel Euceda-Lopez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-299


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Luis Lopez-Euceda (Lopez) appeals his 52-month sentence imposed
following a guilty plea conviction for being found unlawfully present in the
United States following deportation. He argues that the district court plainly
erred in imposing a 16-level enhancement based on his prior Florida
convictions for aggravated battery.          The district court characterized those
convictions as crimes of violence pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 12-51258

      According to Lopez, aggravated battery under the Florida statute is not
a crime of violence because it may be committed in ways that do not involve
the use, attempted use, or threatened use of force. The Government was
permitted to supplement the record to provide copies of the criminal
informations and judgments documenting Lopez’s prior convictions for
aggravated battery. The Government contends that the documents show that
the offenses required as an element of proof the use of physical force or
violence.
      As Lopez concedes, he did not object to the enhancement in the district
court and, therefore, review is for plain error. See Puckett v. United States, 556
U.S. 129, 135 (2009). To establish reversible plain error, the appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Id. at 135. If the appellant 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. Id.
      Section 2L1.2 provides that the offense level for unlawfully reentering
the United States shall be increased by 16 levels if the defendant has a prior
conviction for a crime of violence and the prior conviction receives criminal
history points. § 2L1.2(b)(1)(A)(ii). The comments following that Guideline
define a crime of violence as a number of enumerated offenses or any other
offense that has as an element the use, attempted use, or threatened use of
physical force against the person of another. § 2L1.2, comment. (n.1 (B)(ii)).
      If a statute has disjunctive subsections, we may apply a modified
categorical approach to determine under which statutory subsection the
defendant was convicted. See Descamps v. United States, 133 S. Ct. 2276, 2283-
85 (2013). Under that approach, we may review “the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and



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                                 No. 12-51258

any explicit factual finding by the trial judge to which the defendant assented.”
Shepard v. United States, 544 U.S. 13, 16 (2005).
      In United States v. Ceron, 775 F.3d 222, 224 (5th Cir. 2014), the
defendant also argued that the use of force was not a necessary element for a
conviction under the same Florida aggravated battery statute, Fla. Stat.
§ 784.045(1)(a)(1). Ceron held that the modified categorical approach could be
applied in analyzing the statute because the aggravated battery offense
required the defendant to be guilty also of simple battery, an offense defined
in a separate statute, and the two statutes have “disjunctive subsections”
giving rise to multiple, alternative versions of the crime. 775 F.3d at 228. The
court noted that the defendant had been charged with actual and intentional
touching or striking of the victim and with causing great bodily harm and that
because the offense involved both of those elements, it necessarily involved the
use of force. Id. at 228-29.
      The criminal informations and judgments supporting Lopez’s prior
Florida aggravated battery convictions reflect that he also was charged with
intentionally touching or striking the victims and with knowingly or
intentionally causing great bodily harm and/or permanent disfigurement to
the victims. Thus, in accord with the holding in Ceron, Lopez’s prior offenses
also required proof of elements showing that a use of force was employed in
committing the offenses. Lopez has not demonstrated that the district court
committed error, plain or otherwise, in making the 16-level enhancement
based on his prior aggravated assault convictions being a crime of violence. See
Puckett, 556 U.S. at 135. His sentence is AFFIRMED.




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