Case: 10-11073     Document: 00511723912         Page: 1     Date Filed: 01/12/2012




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

                                                                            FILED
                                                                         January 12, 2012

                                       No. 10-11073                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee,

v.

RAFAEL PEREZ,

                                           Defendant - Appellant,


                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC 4:10-cr-00092-Y-ALL


Before BARKSDALE, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
        Rafael Perez appeals his sentence for illegal reentry after deportation,
arguing that the district court erred by applying an aggravated felony
enhancement to his sentence based on his prior conviction for recklessly causing
injury to a child. Applying the plain error standard of review, we AFFIRM his
sentence because even assuming plain (clear or obvious) error, Perez cannot
show that the assumed error affected his substantial rights.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-11073

                                         I.
      Perez pleaded guilty to reentering the United States illegally after
deportation. His Presentence Investigation Report (“PSR”) assigned him a base
offense level of eight under U.S.S.G. § 2L1.2(a) and included an eight-level
aggravated felony enhancement under Section 2L1.2(b)(1)(C) based on his prior
Texas conviction for recklessly causing injury to a child. After a three-level
decrease for acceptance of responsibility, his total offense level was 13. Perez’s
extensive criminal history justified a criminal history category of VI, bringing
his Guidelines sentencing range to 33–41 months.            The probation officer
recommended that a greater sentence might be warranted because Perez’s
criminal history category inadequately reflected the severity of his prior offenses,
his likelihood of recidivism, and the threat he would pose to the safety of the
community.
      Perez’s attorney objected to the PSR, arguing that the Section
2L1.2(b)(1)(C) adjustment should be stricken for lack of proper documentation.
In response, the probation officer supplied the documentation to the district
court. At sentencing, the district court accepted the PSR’s recommendations and
departed upward under Section 4A1.3(a)(1), sentencing Perez to 60 months in
prison and a three-year term of supervised release. Perez’s attorney objected to
the sentence imposed for the same reasons he had raised earlier regarding the
PSR and on the basis of his comments at sentencing.             The district court
overruled those objections, and Perez filed this timely appeal.
                                        II.
      Perez argues that recklessly causing injury to a child is not an aggravated
felony, and thus, the district court erred by applying an eight-level sentencing
enhancement under Section 2L1.2(b)(1)(C). In United States v. Gracia-Cantu,
using the categorical approach, we held that causing injury to a child was not a
crime of violence for aggravated felony enhancement purposes. 

,

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                                  No. 10-11073

312–13 (5th Cir. 2002). Then in Perez-Munoz v. Keisler, we applied the modified
categorical approach to recognize an exception to Gracia-Cantu. 

,
362 (5th Cir. 2007). We explained that “in cases since Gracia-Cantu, we have
held that it is permissible to use a charging instrument to pare down a statute
to determine if a violation of part of a statute constitutes a crime of violence
when the statute as a whole categorically does not.” 

As we explain
below, even if the district court erred in applying the aggravated felony
enhancement in this case, Perez’s claim would still fail because he has failed to
show that the assumed error affected his substantial rights.
      Perez contends that his objection to the eight-level enhancement on the
basis of the government’s failure to produce sufficient documentation of his prior
convictions preserved his argument for appeal. His documentation objection,
however, did not put the district court on notice of the argument he raises here.
Accordingly, Perez failed to raise his claim of error with the district court “in
such a manner so that the district court may correct itself and thus, obviate the
need for our review,” United States v. Mondragon-Santiago, 

, 361
(5th Cir. 2009) (internal quotation marks omitted). We therefore review for
plain error.
      To show plain error, an appellant must show an error that is clear or
obvious and that affects his substantial rights. United States v. Olano, 

, 734 (1993). If an appellant makes that showing, we will only exercise our
discretion to correct the error if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” 

(internal quotation marks
omitted).
                                        III.
      Even assuming arguendo that Perez could prove clear or obvious error, his
claim would fail because he fails to show that the assumed error affected his
substantial rights. To make that showing, he must demonstrate a reasonable

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                                        No. 10-11073

probability that the assumed error resulted in a longer sentence. See United
States v. Davis, 

, 648 (5th Cir. 2010). Perez contends that if the
district court had not applied the aggravated felony enhancement, his Guideline
range would have been 24–30 months rather than 33–41 months. Thus, even if
the district court had decided to depart upward 19 months (as it did here) in the
absence of the aggravated felony enhancement, the resulting sentence would still
be 11 months less than the sentence the court imposed after starting from the
assumed erroneous guidelines range. At the sentencing hearing, however, the
district court’s focus was not on the 19-month departure, but instead on the
above-Guideline 60-month sentence that it imposed.                       The district court
expressed grave concerns regarding Perez’s extensive criminal history, his
likelihood of recidivism, and the constant threat he would pose to the safety of
the community, explaining that “[a] sentence of 60 months is necessary to
comply with the directives of 18 U.S.C. § 3553(a) and achieve the Court’s
sentencing objectives of punishment, deterrence, and protection of the public.”
Perez has failed to bring forth any evidence from the record indicating that the
district court’s concerns with his criminal history would not have yielded the
same 60-month sentence in the absence of the eight-level enhancement at issue
here.1 Accordingly, he has failed to show that the assumed error affected his
substantial rights.
AFFIRMED.


       1
         We note that this is not a harmless error inquiry like the one we undertook in United
States v. Ibarra-Luna, which occurs when an error has been preserved in district court. 

, 718 (5th Cir. 2010). There we explained that to show that an error in sentencing
was harmless, the proponent of the sentence must “proffer sufficient evidence to convince the
appellate court that the district court would have imposed the same sentence, absent the
error.” 

In this case, where we review for plain error, Perez must show
that the error affected his substantial rights because there is a reasonable probability that his
sentence would have been lower absent the error. See, e.g., 

–48
(explaining that under plain error review, the opponent of the sentence “bears the burden of
establishing reasonable probability” that his sentence would have been lower absent the error).

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