     Case: 15-40491      Document: 00513332655         Page: 1    Date Filed: 01/06/2016




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

                                                                                FILED
                                    No. 15-40491                          January 6, 2016
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS IRAHETA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-927-1


Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM: *
       Jose Luis Iraheta appeals the sentence imposed following his conviction
for illegal reentry into the United States in violation of 8 U.S.C. § 1326. 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 2006 conviction
for infliction of corporal injury on a spouse or cohabitant under California
Penal Code § 273.5(a). He acknowledges that we have held that an offense


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40491

under § 273.5(a) categorically qualifies as a COV under § 2L1.2 in United
States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. 2010), and United States
v. Gutierrez, 371 F. App’x 550, 551 (5th Cir. 2010), but he argues that these
cases were overruled by Descamps v. United States, 133 S. Ct. 2276 (2013), and
that we ignored a conflicting Ninth Circuit case, Morales-Garcia v. Holder, 567
F.3d 1058, 1063 (9th Cir. 2009).
      Iraheta argues that Descamps precludes application of the modified
categorical approach, but he does not explain why the modified categorical
approach would need to be applied, when we have already held that the
statute, by its very terms, is a categorical COV because the use of physical force
against the person of another is an element of the statute. See Cruz-Rodriguez,
625 F.3d at 276. The decision in Morales-Garcia, 567 F.3d at 1064-67, was
based on the law pertaining to crimes of moral turpitude in the immigration
context and is irrelevant to the determination whether the statute is a COV
under the use of force prong rather than the enumerated offense prong in
§ 2L1.2.
      In reviewing a challenge to a COV enhancement that was 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).
      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.              Cruz-
Rodriguez, 625 F.3d at 276.             We cited with approval our prior
unpublished opinion in Gutierrez and the Ninth Circuit’s decision in



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                                 No. 15-40491

United States v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), which rejected the
argument that a conviction under § 273.5(a) does not qualify as a COV because
it could have been committed merely by minimal, non-violent touchings. See
Laurico-Yeno, 590 F.3d at 821-22; Gutierrez, 371 F. App’x at 551. The cases
interpreting the statute have held that a defendant can be convicted of § 273.5
only if he intentionally uses direct physical force against the person of another
resulting in a traumatic condition.     See Cruz-Rodriguez, 625 F.3d at 276;
Laurico-Yeno, 590 F.3d at 821-23; Banuelos-Ayon v. Holder, 611 F.3d 1080,
1083-85 (9th Cir. 2010); United States v. Ayala-Nicanor, 659 F.3d 744, 749-52
(9th Cir. 2011). “The critical aspect of [18 U.S.C.] § 16(a) is that a crime of
violence is one involving the ‘use ... of physical force against the person or
property of another.’” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).       Iraheta’s
argument that § 273.5 is a simple battery and not in the category of a violent
crime as defined in Leocal has also been rejected by the previously cited
authorities.
      None of Iraheta’s arguments shows that our decision in Cruz-Rodriguez
has been overruled by the Supreme Court or this Circuit en banc. See United
States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014).
      The Government has moved for summary affirmance.                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 Iraheta is not entitled to relief and further
briefing is unnecessary.
      The judgment of the district court is AFFIRMED.




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