     Case: 10-20500     Document: 00511764484         Page: 1     Date Filed: 02/22/2012




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

                                                                            FILED
                                                                         February 22, 2012
                                     No. 10-20500
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FLORENCIO MENDEZ PALMA, also known as Florencio Palma Mendez, also
know as Florencio M. Palma,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-38-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        After Defendant-Appellant Florencio Mendez Palma pleaded guilty to
being an alien found in the United States after having been deported, in
violation of 8 U.S.C. § 1326, he was sentenced to 36 months of imprisonment.
For the first time on appeal, Palma contends that the district court erred in
applying a 16-level enhancement based on the record before it and in sentencing




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20500    Document: 00511764484       Page: 2   Date Filed: 02/22/2012

                                   No. 10-20500

him under the statutory maximum set forth in 8 U.S.C. § 1326(b)(2), because he
did not admit the fact of his prior deportation.
      As Palma did not raise these issues in the district court, review is for plain
error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To
demonstrate plain error, Palma must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If Palma 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. Id.
      Palma claims that the district court plainly erred in applying a 16-level
enhancement based on his prior conviction for aggravated sexual assault which
the presentence report (PSR) characterized as a crime of violence. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (Nov. 2009). To the extent that the district court relied solely
on the PSR to make its determination that this prior conviction was a crime of
violence, this was error. See United States v. Garza–Lopez, 410 F.3d 268, 274
(5th Cir. 2005). The district court may, however, use facts admitted by the
defendant in making this determination. See United States v. Martinez-Vega,
471 F.3d 559, 563 (5th Cir. 2006). Through counsel, Palma indicated that he had
no dispute with the facts set forth in the PSR. He has, therefore, failed to show
error that was clear or obvious in this regard. See id. Moreover, by failing to
assert that his conviction was not a crime of violence as defined in the
commentary to § 2L1.2, Palma has failed to show that he would have received
a lesser sentence. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.
2006).
      Relying on United States v. Rojas-Luna, 522 F.3d 502, 504 (5th Cir. 2008),
Palma contends that because he did not admit the fact of his prior deportation,
the district court plainly erred in sentencing him under the statutory maximum
set forth in § 1326(b)(2). Although Palma did not explicitly admit the fact of his
prior deportation at rearraignment, his plea of “guilty” immediately following

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                                 No. 10-20500

the government’s proffer and the district court’s explanation of the elements of
the offense was tantamount to an admission. In addition, the district court was
entitled to rely on Palma’s admission of the facts contained in the PSR to apply
§ 1326(b)(2)’s statutory maximum. See United States v. Ramirez, 557 F.3d 200,
204-05 (5th Cir. 2009). On these facts, the district court did not clearly or
obviously err by applying the enhanced penalty range of § 1326(b)(2).
      The judgment of the district court is AFFIRMED.




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