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United States v. Emanuel Ferman , 583 F. App'x 386 ( 2014 )


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  •      Case: 13-50384      Document: 00512819128         Page: 1    Date Filed: 10/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50384
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 29, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
EMANUEL FERMAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:12-CR-589-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Emanuel Ferman pleaded guilty to one count of illegal reentry into the
United States after deportation. The district court increased his offense level
by 16 levels because his deportation occurred following his Texas state court
conviction of sexual assault under Texas Penal Code § 22.011, a crime of
violence, and sentenced him to 64 months in prison.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50384     Document: 00512819128      Page: 2   Date Filed: 10/29/2014
No. 13-50384
On    appeal    Ferman     challenges    the   16-level   crime-of-violence
enhancement. If preserved for appeal, the district court’s characterization of a
prior offense as a crime of violence is a question of law that this court reviews
de novo. United States v. Izaguirre-Flores,
    405 F.3d 270
    , 272 (5th Cir. 2005).
Ferman, however, failed to preserve the issue by failing to make a timely
objection to the presentence report, and our review is limited to plain error.
See United States v. Jeffries,
    587 F.3d 690
    , 691 n.1 (5th Cir. 2009).
With respect to Ferman’s assertion that a Texas deferred adjudication is
not a felony conviction for purposes of the federal offense level enhancement,
this court has held that deferred adjudication may be counted as a conviction
for a felony for purposes of U.S.S.G. § 2L1.2(b)(1). United States v. Ramirez,
    367 F.3d 274
    , 277 (5th Cir. 2004); United States v. Valdez-Valdez,
    143 F.3d 196
    , 202-03 (5th Cir. 1998).
Ferman also challenges the district court’s determination that his Texas
conviction of sexual assault was a crime of violence for purposes of
§ 2L1.2(b)(1)(A)(ii). That section provides for a 16-level increase if a conviction
qualifies as a crime of violence because it either (1) is one of the enumerated
offenses set forth in the application note to § 2L1.2, or (2) has as an element
the actual, attempted, or threatened use of physical force against another
person. See
    Izaguirre-Flores, 405 F.3d at 273-75
    . In United States v. Castro-
Gonzalez, 530 F. App’x 285, 288-89 (5th Cir. 2013) (unpublished), the court
held that § 22.011 fell within the meaning of forcible sex offenses as defined by
the applicable Sentencing Guidelines. See United States v. Rodriguez,
    711 F.3d 541
    , 549 (5th Cir.) (en banc) (defining method to determine enumerated
offenses), cert. denied,
    134 S. Ct. 512 
    (2013). Under the reasoning of Castro-
Gonzalez, the district court did not plainly err in applying the 16-level
2
Case: 13-50384   Document: 00512819128   Page: 3   Date Filed: 10/29/2014
No. 13-50384
enhancement. See United States v. Guerra, 542 F. App’x 393 (5th Cir. 2013)
(unpublished).
AFFIRMED.
3