United States v. Oscar Guevara-Ventura , 440 F. App'x 303 ( 2011 )

Case: 10-40619 Document: 00511591829 Page: 1 Date Filed: 09/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 2, 2011
No. 10-40619
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSCAR RENE GUEVARA-VENTURA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-290-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Oscar Rene Guevara-Ventura (Guevara) appeals the sentence imposed for
his illegal reentry conviction in violation of 8 U.S.C. § 1326(a). He argues that
the district court committed reversible plain error by convicting, sentencing, and
entering judgment against him under § 1326(b)(2) on the basis that he was
previously convicted of an aggravated felony.
Although we have not yet decided whether robbery or aggravated robbery
in Texas Penal Code §§ 29.02 and 29.03 are aggravated felonies, we are not
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40619 Document: 00511591829 Page: 2 Date Filed: 09/02/2011
No. 10-40619
persuaded that Guevara has carried his burden of demonstrating error, plain or
otherwise, in the district court’s application of the § 1326(b)(2) enhancement on
the basis that his convictions were crimes of violence under 8 U.S.C.
§ 1101(a)(43)(F) and 18 U.S.C. § 16(b). See United States v. Gore, 636 F.3d 728,
736-37 (5th Cir. 2011) (concluding that Texas aggravated robbery is a violent
felony under the Armed Career Criminal Act because it involves a serious
potential risk of physical injury to another); United States v. Sandlin, 589 F.3d
749, 757 (5th Cir. 2009) (stating that the defendant bears the burden of
persuasion on plain error review), cert. denied, 130 S. Ct. 2078 (2010).
The judgment of the district court is AFFIRMED.
2