United States v. Victor Blancas-Rosas , 637 F. App'x 855 ( 2016 )

Case: 15-40524 Document: 00513410572 Page: 1 Date Filed: 03/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40524 FILED
Summary Calendar March 8, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTOR MANUEL BLANCAS-ROSAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-728
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Victor Manuel Blancas-Rosas appeals his conviction and sentence for
illegal reentry after deportation. We affirm.
Blancas-Rosas first contends that the district court improperly
participated in plea negotiations in violation of Federal Rule of Criminal
Procedure 11(c)(1). Even if we assume that the district court’s pretrial
comments amounted to improper participation, we find that any violation of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40524
Rule 11 was harmless. See United States v. Davila, 133 S. Ct. 2139, 2148-50
(2013); United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 1995). Blancas-
Rosas did not plead guilty, and his trial and sentencing were fair and impartial.
See Crowell, 60 F.3d at 205.
Blancas-Rosas’s other claims concern the application of the Sentencing
Guidelines and are reviewed for plain error. See United States v. Rodriguez-
Parra, 581 F.3d 227, 229 (5th Cir. 2009). To show plain error, he must show a
forfeited error that is clear or obvious and that affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he does so, we have
discretion to correct the error if it seriously affects the integrity, fairness, or
public reputation of the judicial proceedings. See id. If an alleged legal error
is subject to reasonable dispute, it is not clear or obvious. Rodriguez-Parra,
581 F.3d at 231.
In his first guideline claim, Blancas-Rosas asserts that an eight-level
“aggravated felony” increase was improper because a 2005 Texas conviction
was not for a generic theft offense and was therefore not an aggravated felony.
We need not examine the 2005 conviction because Blancas-Rosas’s two
subsequent illegal reentry convictions qualify as aggravated felonies, even
though they were based on the 2005 conviction. See United States v. Gamboa-
Garcia, 620 F.3d 546, 548-49 (5th Cir. 2010); 8 U.S.C. § 1101(a)(43)(O).
In any event, we have previously rejected Blancas-Rosas’s argument that
the Texas crime of theft is not generic theft. See United States v. Rodriguez-
Salazar, 768 F.3d 437, 438 (5th Cir. 2014). Rodriguez-Salazar is not in conflict
with our prior decision in Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008).
See Rodriguez-Salazar, 768 F.3d at 438.
In addition, Blancas-Rosas has failed to show that he was entitled to
credit for acceptance of responsibility under U.S.S.G. § 3E1.1. Although in
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No. 15-40524
some cases, going to trial does not preclude credit for acceptance of
responsibility, this is not such a case. See § 3E1.1, comment. (n.2). Blancas-
Rosas agreed to admit the operative facts only if he could go free, and he
presented the factual defense that he was brought into the United States
involuntarily. Further, he persistently raised legal arguments that were
frivolous and irrelevant. The decision to deny credit for acceptance of
responsibility was not without foundation. See United States v. Rudzavice, 586
F.3d 310, 315 (5th Cir. 2009).
The judgment is AFFIRMED.
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