   Case: 10-20491       Document: 00511590638         Page: 1     Date Filed: 09/01/2011




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

                                                                            FILED
                                                                        September 1, 2011
                                     No. 10-20491
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

VALENTIN MENDEZ CARRANZA, Also Known as Valentin Mendez,
Also Known as Valentine Mendez, Also Known as Valentin Corranza Mendez,
Also Known as Valentin Mendez-Carranza,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:10-CR-30-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20491    Document: 00511590638      Page: 2    Date Filed: 09/01/2011

                                  No. 10-20491

      Valentin Mendez Carranza appeals the sentence imposed following his
guilty plea conviction of illegal reentry into the United States following depor-
tation in violation of 8 U.S.C. § 1326. He contends that the district court erred
in applying an 8-level aggravated-felony enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) based on his prior conviction of deadly conduct under Texas
Penal Code Annotated § 22.05(b)(2). The government argues that Mendez Car-
ranza’s counsel waived the issue because he objected to the 16-level enhance-
ment and argued that only the 8-level enhancement under § 2L1.2(b)(1)(C)
should apply.
      The record does not show that defense counsel was aware of an argument
that the 8-level enhancement should not apply or any evidence that counsel
intentionally relinquished a known right. Counsel did not make a specific objec-
tion to an enhancement but withdraw it later at sentencing. Further, Mendez
Carranza did not receive a benefit from any waiver of the right to challenge the
enhancement. Because the record does not indicate that counsel intentionally
relinquished a known right, he did not waive any challenge to the 8-level
enhancement. See United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir.
2010); United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010); United
States v. Castaneda-Baltazar, 239 F. App’x 900 (5th Cir. 2007).
      Mendez Carranza asserts that his prior Texas conviction of deadly conduct
by knowingly discharging a firearm at or in the direction of a habitation in vio-
lation of Texas Penal Code Annotated § 22.05(b)(2) was not a crime of violence
(“COV”) for purposes of the 8-level enhancement under § 2L1.2(b)(1)(C). He also
argues that the district court erroneously classified his prior offense as an aggra-
vated felony under § 1326(b)(2), so the judgment should be corrected to reflect
that he was convicted and sentenced under § 1326(b)(1). Because Mendez Car-
ranza did not raise those arguments in the district court, review is limited to
plain error. See Andino-Ortega, 608 F.3d at 308-09; see also Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009).

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   Case: 10-20491     Document: 00511590638   Page: 3   Date Filed: 09/01/2011

                                 No. 10-20491

      The court did not plainly err in finding that his prior conviction was an
aggravated felony under § 1326(b)(2) or in applying the 8-level enhancement
under § 2L1.2(b)(1)(C). In United States v. Hernandez-Rodriguez, 467 F.3d 492,
495 (5th Cir. 2006), we held that a conviction of deadly conduct under § 22.05-
(b)(1) constituted a COV for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) (applying
16-level enhancement for a “crime of violence”). We have not addressed whether
a § 22.05(b)(2) conviction is an aggravated felony under § 1326(b)(2) and a COV
for purposes of § 2L1.2(b)(1)(C), so any error was not clear or obvious. See
United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008). There-
fore, Mendez Carranza has not shown that the district court plainly erred in
finding that his § 22.05(b)(2) conviction was an aggravated felony or in applying
the 8-level felony enhancement pursuant to § 2L1.2(b)(1)(C). See id.; Puckett,
129 S. Ct. at 1429.
      AFFIRMED.




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