     Case: 13-10602      Document: 00512725847         Page: 1    Date Filed: 08/07/2014




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

                                    No. 13-10602                               FILED
                                  Summary Calendar                        August 7, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CECILIO MENDOZA-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:12-CR-204-1


Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Cecilio Mendoza-Garcia (Mendoza) pleaded guilty,
without a written plea agreement, to illegal re-entry after deportation and was
sentenced at the bottom of the guidelines imprisonment range to a 41-month
term of imprisonment and to a two-year period of supervised release. In
determining the sentence, the district court applied the 16-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) related to Mendoza’s 1989 California


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10602   Document: 00512725847      Page: 2   Date Filed: 08/07/2014


                                  No. 13-10602

conviction of unlawful sexual intercourse with a minor. Mendoza contends
that imposition of the 16-level enhancement was procedurally unreasonable.
       After United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for procedural error and substantive reasonableness under an abuse
of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). As Mendoza
did not object to the procedural and substantive reasonableness of the
sentence, our review is for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007).      To show plain error, Mendoza must show
a forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he 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. See
id.
       Citing United States v. Rodriguez-Guzman, 506 F.3d 738, 747 (9th Cir.
2007), Mendoza asserts that the 41-month within-guidelines sentence imposed
by the district court represents a clear error in judgment because the district
court’s “sentencing calculus . . . did not reflect an understanding of the current
circuit split of authority on the precise question raised, namely, whether age
16 (or some other age) serves as the ‘age of consent’ involving consensual,
sexual activity.” He acknowledges that we held, in United States v. Rodriguez,
711 F.3d 541, 559-60 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013),
that the generic meaning of the term “minor” is a person under 18 years of age.
       Given our en banc decision in Rodriguez, Mendoza cannot show that the
district court committed a clear and obvious error in failing to recognize and
consider Rodriguez-Guzman when it determined that Mendoza’s 1989 state
conviction was a generic conviction of sexual abuse of a minor or statutory rape.



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                                  No. 13-10602

See Puckett, 556 U.S. at 135; see also Rodriguez, 711 F.3d at 559-60;
§ 2L1.2(b)(1)(A)(ii) & comment. (n.B(iii)). Moreover, Mendoza has made no
effort to show that his substantial rights were affected. See Puckett, 556 U.S.
at 135. Neither has he shown why we should exercise our discretion to correct
a sentence that was, under this circuit’s law, correctly calculated. See id.
      Mendoza     also    contends   that   the   sentence    was    substantively
unreasonable because the district court failed to give adequate consideration
to his history and characteristics and because the sentence was greater than
necessary to satisfy the sentencing goals of deterrence and protection of the
public.   A presumption of substantive reasonableness applies to within-
guidelines sentences. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). On this record, Mendoza cannot rebut that presumption. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Neither can he show that
the district court committed reversible plain error in applying the statutory
sentencing factors. See Puckett, 556 U.S. at 135. The judgment is
      AFFIRMED.




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