     Case: 09-50823     Document: 00511244344          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                        September 24, 2010
                                     No. 09-50823
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

NOE CRUZ FERNANDEZ-SANCHEZ, also known as Jesus Alfredo Fernandez,
also known as Noe Cruz-Fernandez, also known as Noe Sanchez-Fernandez,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:09-CR-88-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Noe Cruz Fernandez-Sanchez appeals from his conviction of illegal
reentry. He contends that the district court erred by adjusting his offense level
pursuant to section 2L1.2(b)(1)(A) of the Sentencing Guidelines based on his
state court deferred adjudication of aggravated assault on a peace officer with
a deadly weapon.         He argues that it was improper to use the deferred
adjudication because he pleaded nolo contendere and thus was not determined


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50823    Document: 00511244344 Page: 2         Date Filed: 09/24/2010
                                 No. 09-50823

to be guilty. He further contends that the use of his deferred adjudication
constituted a bill of attainder. Fernandez-Sanchez did not raise his contentions
in the district court; our review thus is for plain error. Puckett v. United States,
129 S. Ct. 1423, 1428 (2009).
      The state court magistrate who took Fernandez-Sanchez’s nolo contendere
plea determined that the evidence was sufficient to establish his guilt. His nolo
contendere plea was the equivalent of a guilty plea. See T EX . C ODE C RIM.
P. A NN. arts. 27.02(5), 42.12 § 5(a); United States v. Cuevas, 75 F.3d 778, 781 n.8
(5th Cir. 1996). The district court did not err by using the deferred adjudication
to adjust Fernandez-Sanchez’s offense level. See United States v. Valdez-Valdez,
143 F.3d 196, 198-201 (5th Cir. 1998).
      A bill of attainder is “a law that legislatively determines guilt and inflicts
punishment upon an identifiable individual without provision of the protections
of a judicial trial.” Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468
(1977); see also Communist Party of the United States v. Subversive Activs.
Control Bd., 367 U.S. 1, 86 (1961) (“The singling out of an individual for
legislatively prescribed punishment constitutes an attainder whether the
individual is called by name or described in terms of conduct which, because it
is past conduct, operates only as a designation of particular persons.”).
      The use of deferred adjudications to adjust an offense level pursuant to
section 2L1.2 does not single out Fernandez-Sanchez for a determination of guilt
and the imposition of punishment. See Nixon, 433 U.S. at 468.
      Fernandez-Sanchez has failed to demonstrate error, plain or otherwise.
      AFFIRMED.




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