United States v. Jose Vega-Alvarado , 548 F. App'x 134 ( 2013 )

Case: 13-20063 Document: 00512457187 Page: 1 Date Filed: 12/02/2013
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20063 December 2, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE EFRAIN VEGA-ALVARADO, also known as Jose Efrain Vega, also
known as Jose E. Vega, also known as Humberto Calderon,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-528-1
Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
Jose Efrain Vega-Alvarado (Vega) appeals his guilty plea conviction and
56-month sentence for being found unlawfully present in the United States
following deportation after conviction of an aggravated felony in violation of 8
U.S.C. § 1326(a), (b)(2). The district court enhanced Vega’s sentence based
upon its finding that his prior California conviction for lewd acts with a child
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20063 Document: 00512457187 Page: 2 Date Filed: 12/02/2013
No. 13-20063
under the age of 14 was a conviction for a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A). Vega argues that the offense for which he was convicted did
not qualify as a crime of violence because the statute under which he was
convicted was overly broad.
Vega preserved this error; accordingly, we “review the district court’s
application of the Guidelines de novo and its factual findings for clear error.”
United States v. Neal, 578 F.3d 270, 273 (5th Cir. 2009) (internal quotation
marks and citation omitted). In 2001, Vega was convicted under CAL. PENAL
CODE ANN. § 288(a). Consistent with the plain-meaning approach we adopted
in United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir. 2013) (en banc), his
conviction was for the enumerated offense of sexual abuse of a minor and,
accordingly, a crime of violence under § 2L1.2(b)(1)(A)(ii). See § 2L1.2,
comment. (n.1(B)(iii)); United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th
Cir. 2005). Vega cannot, therefore, demonstrate that the district court
committed error. See Neal, 578 F.3d at 273.
Because the above analysis is dispositive, we need not address Vega’s
arguments related to the modified categorical approach.
The judgment of the district court is AFFIRMED.
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