     Case: 14-41420      Document: 00513302209         Page: 1    Date Filed: 12/10/2015




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

                                      No. 14-41420                                 FILED
                                                                           December 10, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee,
v.

YONNY ALEXANDER COREA-RODRIGUEZ,
also known as Brayan Rodriguez,

                                                 Defendant-Appellant.


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:14-CR-592


Before STEWART, Chief Judge, and KING and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant pled guilty to illegal reentry. The district court
imposed a sentence of 25 months’ imprisonment.                     Defendant-Appellant
appealed. We affirm.
                          I. Facts & Procedural History
       Defendant-Appellant        Yonny     Alexander      Corea-Rodriguez           (“Corea-
Rodriguez”) was charged with illegal reentry following removal. He pled guilty
before a magistrate judge, and the district court accepted his plea. In an



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Amended Presentence Report (PSR), the probation officer recommended that
Corea-Rodriguez’s base offense level of 8 be enhanced by 4 levels due to his
previous felony conviction of possession with intent to distribute a controlled
substance.       See U.S.S.G. § 2L1.2(b)(1)(D).                 The probation officer also
recommended a 6-level “Official Victim” enhancement pursuant to U.S.S.G. §
3A1.2(c)(1) based on Corea-Rodriguez’s actions during his initial encounter
with Border Patrol agents. 1              After a 3-level reduction for acceptance of
responsibility, Corea-Rodriguez’s total offense level was 15 with a criminal
history category of II, resulting in a Guidelines range of 21 to 27 months’
imprisonment.
       Corea-Rodriguez          objected      to       application    of    the    §   3A1.2(c)(1)
enhancement, arguing that he had not engaged in conduct that rose “to the
level of a risk of serious bodily injury to the officer.” The Government then
proceeded to put on evidence in support of the enhancement and called to
testify as a witness the “official victim,” Border Patrol Agent Sidney Moore
(“Agent Moore”). Agent Moore testified that he and other agents tracked a
group of aliens for approximately 10 miles and eventually found them sleeping
in a cluster of trees near Sarita, Texas. As the agents moved in, two of the
aliens, one of whom was Corea-Rodriguez, fled on foot. Although the aliens
had a significant head start, Moore and another agent ran after them while a
third agent, Matthew Fosnaugh, who was in a vehicle, tried to get ahead of the



       1  Section 3A1.2(c)(1) provides for a 6-level enhancement for an official victim where a
defendant “knowing . . . that a person was a law enforcement officer, assaulted such officer
during the course of the offense or immediate flight therefrom.” Section 3A1.2(c)(1) “applies
in circumstances tantamount to aggravated assault” and “is limited to assaultive conduct . .
. that is sufficiently serious to create at least a ‘substantial risk of serious bodily injury.’” Id.,
cmt. (n.4(A)). “Substantial risk of serious bodily injury” includes “any more serious injury
that was risked, as well as actual serious bodily injury.” Id., cmt. (n4(B)). The commentary
to § 3A1.2 does not define “aggravated assault,” nor is a definition for the term provided in
the application notes to U.S.S.G. § 1B1.1.
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                                 No. 14-41420
aliens and cut them off. The foot chase went on for approximately 1.5 to 2
miles. When the aliens were cut off by Agent Fosnaugh’s vehicle, they turned
around and headed back to the west, running toward Agent Moore.
      Agent Moore further testified that he came over the top of a sand dune,
saw Corea-Rodriguez about 20 or 30 yards away, and commanded him in both
Spanish and in English to stop and get on the ground but Corea-Rodriguez
ignored his commands and continued to advance toward him.             As Corea-
Rodriguez approached, Agent Moore pulled out a collapsible straight baton and
struck him twice on his left leg but this did not subdue him. Shortly thereafter,
Corea-Rodriguez grabbed Agent Moore’s left shoulder and attempted to pull
him down toward the ground. Agent Moore then dropped his baton, unable to
subdue Corea-Rodriguez. The two men continued to struggle until Agent
Fosnaugh arrived and both agents were finally able to subdue Corea-
Rodriguez.
      Corea-Rodriguez was then called to the witness stand by defense
counsel. He testified that he and a group of others had been walking for 12 or
13 hours before they stopped to rest at about 6:00 a.m. or 7:00 a.m. He was
awakened by the noise of people running and upon seeing immigration agents,
he also began to run until he saw an immigration truck in his path and changed
directions. Corea-Rodriguez testified that after turning around, he went over
a hill and “almost came upon” an immigration agent who ordered him to stop.
According to Corea-Rodriguez, he immediately complied with the agent’s
orders by kneeling down and putting his hands behind his head. The agent
then approached Corea-Rodriguez and squeezed his hand and arm, causing
him pain. Corea-Rodriguez testified that he tried to explain to the agent that
he previously had surgery on his arm and that the agent was hurting him but
the agent did not understand him. The agent told Corea-Rodriguez to stand
up so he complied. Corea-Rodriguez went on to testify that the agent then
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                                   No. 14-41420
struck him with the baton and the baton fell to the ground. Corea-Rodriguez
denied that he had ever struggled with the agent.
      After presenting the above testimony, Corea-Rodriguez argued that he
had not engaged in conduct that was “sufficiently serious to create at least a
substantial risk of serious bodily injury.” He further asserted that, even if
Agent Moore’s account of the events was completely accurate, there had been
no testimony to the effect that he was doing anything other than trying to get
away, and that “[n]othing that [Corea-Rodriguez] did demonstrates a clear
intent to do injury to the officer.”
      The district court determined that the Government had carried its
burden of proof and overruled Corea-Rodriguez’s objection to the enhancement.
In doing so the district court found that Agent Moore’s testimony was credible
and that Corea-Rodriguez’s testimony was “less than credible.” In explaining
its credibility determination, the district court noted Corea-Rodriguez’s
lengthy criminal history involving aggressive physical encounters and
protective orders.    The district court concluded that Corea-Rodriguez “did
assault” Agent Moore and that the facts surrounding the assault met the
requirements for application of the enhancement under § 3A1.2(c)(1). The
district   court   imposed   a within-Guidelines     sentence    of   25 months’
imprisonment and a $100 special assessment with no supervised release.
Corea-Rodriguez timely appealed.
                             II. Standard of Review
       Ordinarily, this court reviews a district court’s interpretation and
application of the Sentencing Guidelines de novo and its factual findings for
clear error. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
A district court is permitted to draw reasonable inferences from the facts, and
the inferences are also reviewed for clear error. Id. (citation omitted). This
court “will uphold a district court’s factual finding on clear error review so long
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as the enhancement is plausible in light of the record as a whole.” Id. (citation
omitted).
      However, “when a party challenges a district court’s sentencing decision
on grounds it did not present to the district court,” the plain error standard of
review applies. United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008)
(citation omitted). To preserve an error, “[a] party must raise a claim of error
with the district court in such a manner so that the district court may correct
itself and thus, obviate the need for [this court’s] review.” United States v.
Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011) (internal quotation marks and
footnote omitted). The party must articulate an objection “specific enough to
allow the trial court to take testimony, receive argument, or otherwise explore
the issue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997)
(citation omitted).
      “Plain error exists if (1) there is an error, (2) the error is plain, . . . (3)
the error affect[s] substantial rights and (4) the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” See United
States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam)
(citation omitted). “An error is plain if the error is apparent at the time of
appeal.” Id. (citation omitted).
                                   III. Discussion
      Corea-Rodriguez argues on appeal that the district court erred in
applying the § 3A1.2(c)(1) enhancement because there was no evidence
presented or finding by the district court that he specifically intended to injure
Agent Moore. Since Corea-Rodriguez did not present this argument to the
district court, however, we review his argument on appeal for plain error only.
Duhon, 541 F.3d at 396.
      This court has not explicitly held that the district court is required to
make a finding of specific intent in order to apply an enhancement under §
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                                 No. 14-41420
3A1.2(c)(1). See United States v. Anderson, 559 F.3d 348, 356-57 (5th Cir.
2009); United States v. Hernandez-Conde, 301 F. App’x 372, 374 (5th Cir. 2008);
see also United States v. Delgado, 250 F. App’x 30, 31 (5th Cir. 2007) (declining
to address the issue of whether the Government is required to prove
defendant’s intent to injure police officers to warrant an enhancement under §
3A1.2(c)(1) because the district court’s findings had not been shown clearly
erroneous and circuit precedent supported the enhancement under the
circumstances). Consequently, any perceived error on the part of the district
court in failing to make a finding of specific intent would not be plain. Garcia-
Carrillo, 749 F.3d at 378. Accordingly, we hold that the district court did not
plainly err in applying the § 3A1.2(c)(1) enhancement.
                               IV. Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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