     Case: 12-20679       Document: 00512325331         Page: 1     Date Filed: 07/30/2013




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

                                                                            FILED
                                                                            July 30, 2013
                                     No. 12-20679
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FRANCISCO CASTRO HERNANDEZ, also known as Francisco Hernandez, also
known as Fredy Antonio Hernandez-Castro, also known as Francisco
Castro-Hernandez, also known as Francisco Hernandez-Castro, also known as
Francisco Castro, also known as Francisco Hernandez Castro, also known as
Fredi A. T-Hernandez, also known as Fredi A. Tercero, also known as Fredi A.
Tercero Hernandez, also known as Fredi A. Hernandez, also known as Fredi H.
Tercero-H, also known as Fredy Tercero Hernandez, also known as Freddie
Antonio Hernandez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-148-1


Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Francisco Castro Hernandez appeals the 70-month sentence he received
following his guilty-plea conviction for being an alien found unlawfully in 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20679     Document: 00512325331       Page: 2   Date Filed: 07/30/2013

                                   No. 12-20679

United States after having been previously deported following an aggravated
felony conviction, in violation of 8 U.S.C. § 1326(b). He contends that his prior
Texas conviction for attempted arson is not a crime of violence under 18 U.S.C.
§ 16 or an aggravated felony under 8 U.S.C. § 1101(a)(43) and that he was
therefore erroneously sentenced under the increased statutory maximum of
§ 1326(b)(2). Specifically, he asserts that the Texas statute under which he was
convicted does not require as an element the use of physical force or the use of
such force against the property of another.
      The Government counters that Hernandez affirmatively waived the
argument by raising it in his objections to the presentence report but
abandoning it at sentencing. It therefore asserts that the argument is not
reviewable on appeal. We do not decide the issue because, even if Hernandez’s
argument is forfeited rather than waived, it fails under the otherwise applicable
plain error standard. See United States v. Fernandez-Cusco, 447 F.3d 382, 384
(5th Cir. 2006); see also Puckett v. United States, 556 U.S. 129, 135 (2009).
      To show plain error, the appellant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett, 556 U.S. at 135. If
the appellant makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
      Subsection (b)(2) of § 1326 increases the applicable statutory maximum
sentence if the defendant’s prior removal was subsequent to an aggravated
felony conviction. See § 1326(b)(2). In the instant case, Hernandez was subject
to the higher statutory penalties of § 1326(b)(2) based on his prior Texas
conviction for attempted arson, in violation of TEX. PENAL CODE ANN. § 28.02.
      The term “aggravated felony” in § 1326(b)(2) is defined by 8 U.S.C.
§ 1101(a)(43). Arson is not specifically listed, but one of the subsections of § 1101
defines an aggravated felony as a “crime of violence (as defined in section 16 of
Title 18 . . . for which the term of imprisonment [is] at least one year.” See

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                                  No. 12-20679

§ 1101(a)(43)(F). Section 16 of Title 18 does not list any enumerated offenses;
it defines a crime of violence more generally as “an offense that has as an
element the use, attempted use, or threatened use of physical force against the
person or property of another” or “any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force against the person or
property of another may used in the course of committing the offense.”
      This court has not specifically addressed whether Texas arson qualifies as
a crime of violence under § 16, or more generally as an aggravated felony under
§ 1101(a)(43). Consequently, the error Hernandez asserts is not clear or obvious
under current law. See United States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th
Cir. 2009); see also United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010).
      Alternatively, even if the district court clearly and obviously erred in
finding that Hernandez’s Texas conviction for attempted arson was a crime of
violence under § 16 and, thus, an aggravated felony under § 1101(a)(43) and
§ 1326(b)(2), Hernandez fails to show reversible plain error. His prior attempted
arson conviction is nevertheless a felony conviction under § 1326(b)(1). See TEX.
PENAL CODE ANN. § 28.02(d) and § 15.01(d). As such, Hernandez was subject to
a statutory maximum sentence of at least 10 years of imprisonment. See
§ 1326(b)(1). Because he received a sentence of 70 months, well less than either
the 10- or 20-year maximums, Hernandez cannot show that any error in finding
that he was subject to a 20-year statutory maximum sentence affected his
substantial rights. See Puckett, 556 U.S. at 135.
      The district court’s judgment is AFFIRMED.




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