United States v. Maximiliano Zavala Romero ( 2018 )

Case: 16-41092 Document: 00514718304 Page: 1 Date Filed: 11/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41092 FILED
Summary Calendar November 9, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MAXIMILIANO ZAVALA ROMERO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-1116-1
Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
Maximiliano Zavala Romero appeals the sentence imposed following his
guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326(a) and
(b)(2). He contends that the district court erred in imposing a 16-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) for a crime of violence
based on his prior Maryland conviction for first-degree 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.
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No. 16-41092
In the district court, Zavala Romero objected to the 16-level
enhancement in the district court on the ground that the state court documents
were insufficient to establish the offense of conviction. He did not specifically
argue that his Maryland first-degree assault conviction was not a crime of
violence under § 2L1.2(b)(1)(A)(ii). Because Zavala Romero did not raise this
argument in the district court, review is limited to plain error. See United
States v. Narez-Garcia, 819 F.3d 146, 150 (5th Cir. 2016). To show plain error,
Zavala Romero 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 makes such a showing, this court has the discretion to correct the
error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
In United States v. Arevalo, 548 F. App’x 285, 285 (5th Cir. 2013), we
concluded that there was no clear or obvious error in the imposition of a 16-
level enhancement under § 2L1.2(b)(1)(A)(ii) based on a prior Maryland
conviction for first-degree assault. The District of Columbia Circuit and the
Fourth Circuit have held that a Maryland first-degree assault conviction
constitutes a violent felony under the similarly worded elements clause of the
Armed Career Criminal Act (ACCA). United States v. Haight, 892 F.3d 1271,
1281-82 (D.C. Cir.), petition for cert. filed (Sept. 24, 2018) (No. 18-370); United
States v. Redd, 372 F. App’x 413, 415 (4th Cir. 2010). In view of the foregoing,
any error in the application of the 16-level enhancement was not clear or
obvious. See United States v. Greenough, 669 F.3d 567, 575-76 (5th Cir. 2012).
In addition, Zavala Romero also argues that the judgment should be
reformed to reflect that he was convicted and sentenced under § 1326(b)(1)
because his prior Maryland first-degree assault conviction is not an aggravated
felony under § 1326(b)(2). He contends that in view of Sessions v. Dimaya, 138
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Case: 16-41092 Document: 00514718304 Page: 3 Date Filed: 11/09/2018
No. 16-41092
S. Ct. 1204 (2018), his conviction cannot be classified as a crime of violence
under 18 U.S.C. § 16(b) and that if his conviction does not constitute a crime of
violence under § 16(a), then the judgment of conviction must be reformed to
reflect that he was convicted under § 1326(b)(1). For the same reasons
discussed above, any error in the imposition of Zavala Romero’s sentence under
§ 1326(b)(2) was not clear or obvious. See Puckett, 556 U.S. at 135; Narez-
Garcia, 819 F.3d at 150.
AFFIRMED.
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