     Case: 11-20172     Document: 00511821180         Page: 1     Date Filed: 04/13/2012




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

                                                                            FILED
                                                                           April 13, 2012
                                     No. 11-20172
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ARNULFO MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-701-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Arnulfo Martinez appeals his 56-month sentence for being found illegally
present in the United States after deportation following an aggravated felony
conviction. See 8 U.S.C. § 1326. Citing United States v. Andino-Ortega, 608 F.3d
305, 311 (5th Cir. 2010), Martinez argues that the district court committed plain
error when it determined that his prior Texas conviction for injury to a child
qualified as a crime of violence (COV) and enhanced his offense level by 16 levels



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20172    Document: 00511821180      Page: 2   Date Filed: 04/13/2012

                                  No. 11-20172

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Government concedes that the
district court improperly applied the enhancement.
       Because Martinez did not object to the enhancement in the district court,
we review for plain error. See Puckett v. United States, 556 U.S. 129, 135. To
prevail under plain-error review, Martinez must show an error that is “clear or
obvious, rather than subject to reasonable debate.” Id. He also must show that
the error affected his substantial rights. See id. If he makes these showings, we
have the discretion to correct the error if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks, alteration, and citation omitted).
       Martinez was convicted of injury to a child under TEXAS PENAL CODE
§ 22.04(a). In Andino-Ortega, we concluded on plain error review that, because
the elements of the statute could be satisfied by some intentional act that did not
include the use of physical force, a conviction under § 22.04(a) did not qualify as
a COV for purposes of § 2L1.2(b)(1)(A)(ii). Andino-Ortega, 608 F.3d at 311.
Because Martinez was convicted under the same portion of § 22.04 as Andino-
Ortega, we conclude that the district court committed a clear or obvious error in
finding that Martinez’s prior offense qualified as a COV. See id. In addition, we
have previously found that where, as here, a guidelines error results in the
imposition of a sentence that is greater than the maximum under the correct
guidelines range, the error has affected the defendant’s substantial rights, and
it would seriously affect the fairness, integrity, and public reputation of the
judicial proceedings to leave the error uncorrected. See id. at 311-12. On these
facts, we find similarly, i.e., that the third and fourth prongs of plain error are
met.
       Accordingly, we VACATE Martinez’s sentence and REMAND the case for
resentencing.




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