Case: 11-51176     Document: 00512044430         Page: 1     Date Filed: 11/06/2012




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

                                                                            FILED
                                                                         November 6, 2012
                                     No. 11-51176
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WALDIN ANDRES SOTO-ROMERO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:10-CR-900-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Waldin Andres Soto-Romero appeals the 54-month term of imprisonment
imposed following his guilty plea conviction for having been unlawfully found in
the United States following prior deportation. Specifically, he challenges the
district court’s application of the 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), based upon his prior conviction for a crime of violence,
namely, the Georgia offense of aggravated assault.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51176    Document: 00512044430       Page: 2   Date Filed: 11/06/2012

                                   No. 11-51176

      Soto-Romero contends that the Georgia statute of conviction is not an
enumerated offense and does not implicate the residual “use of force” prong of
§ 2L1.2's definition. Because he did not object on this basis below, this court’s
review is for plain error only. See United States v. Brantey, 

, 351
(5th Cir. 2008). To establish reversible plain error, Soto-Romero must show a
forfeited error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 

, 135 (2009). If he 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. See id.
      Using a “common sense approach,” we hold that the district court did not
plainly err in its determination that the generic, contemporary meaning of the
offense of aggravated assault includes the intentionally-caused apprehension of
injury, 2 Wayne R. LaFave, Substantive Criminal Law, § 16.3 (2d ed. 2003), and
that Soto-Romero’s Georgia offense falls within that generic, contemporary
meaning. United States v. Santiesteban-Hernandez, 

, 378-79 (5th
Cir. 2006); United States v. Sanchez-Ruedas, 

, 411, 414 (5th Cir.
2006). Accordingly, the judgment of the district court is AFFIRMED.




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