     Case: 13-50909      Document: 00512695122         Page: 1    Date Filed: 07/11/2014




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

                                                                             FILED
                                    No. 13-50909                         July 11, 2014
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HIPOLITO MEJIA-ESCOBAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1726-1


Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Hipolito Mejia-Escobar appeals his conviction and sentence of 51 months
of imprisonment for illegal reentry into the United States following
deportation. He contends for the first time on appeal that the district court
erroneously increased his offense level by 16 under U.S.S.G. § 2L1.2(b)(1)(A)(ii)
because he had a prior conviction in Florida for felony battery. He argues that
the documentation of the prior conviction was insufficient to support the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50909    Document: 00512695122     Page: 2   Date Filed: 07/11/2014


                                 No. 13-50909

conclusion that the offense was a crime of violence under § 2L1.2(b)(1)(A)(ii).
Specifically, he contends that the documentation in the record does not show
that the offense was either an enumerated offense under the Guideline or that
it had as an element “the use, attempted use, or threatened use of physical
force against the person of another.” See § 2L1.2, comment. (n.1(B)(iii)).
      The Amended Information in the record shows that Mejia-Escobar’s
prior conviction was for a violation of Florida Statute § 784.041(1), which has
only one relevant subsection.    Felony battery under § 784.041 cannot be
committed without using physical force or violence. Dominguez v. State, 98
So. 3d 198, 200 (Fla. Dist. Ct. App. 2012). This court has not addressed
whether Florida felony battery is a crime of violence. Mejia-Escobar fails to
show that the district court clearly or obviously erred in concluding that the
Florida offense involved the use of physical force against another and thus
qualified as a crime of violence. See § 2L1.2, comment. (n.1(B)(iii)); United
States v. Fernandez–Cusco, 447 F.3d 382, 384 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED.




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