No. 10-20491 Summary Calendar.United States Court of Appeals, Fifth Circuit.
September 1, 2011.
Appeal from the United States District Court for the Southern District of Texas No. 4:10-CR-30-1.
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:[*]
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Valentin Mendez Carranza appeals the sentence imposed following his guilty plea conviction of illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326. He contends that the district court erred in applying an 8-level aggravated-felony enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) based on his prior conviction of deadly conduct under Texas Penal Code Annotated § 22.05(b)(2). The government argues that Mendez Carranza’s counsel waived the issue because he objected to the 16-level enhancement and argued that only the 8-level enhancement under § 2L1.2(b)(1)(C) should apply.
The record does not show that defense counsel was aware of an argument that the 8-level enhancement should not apply or any evidence that counsel intentionally relinquished a known right. Counsel did not make a specific objection to an enhancement but withdraw it later at sentencing. Further, Mendez Carranza did not receive a benefit from any waiver of the right to challenge the enhancement. Because the record does not indicate that counsel intentionally relinquished a known right, he did not waive any challenge to the 8-level enhancement. See United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir. 2010); United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010); United States v. Castaneda-Baltazar, 239 F. App’x 900 (5th Cir. 2007).
Mendez Carranza asserts that his prior Texas conviction of deadly conduct by knowingly discharging a firearm at or in the direction of a habitation in violation of Texas Penal Code Annotated § 22.05(b)(2) was not a crime of violence (“COV”) for purposes of the 8-level enhancement under § 2L1.2(b)(1)(C). He also argues that the district court erroneously classified his prior offense as an aggravated felony under § 1326(b)(2), so the judgment should be corrected to reflect that he was convicted and sentenced under § 1326(b)(1). Because Mendez Carranza did not raise those arguments in the district court, review is limited to plain error. See Andino-Ortega, 608 F.3d at 308-09; see also Puckett v. United States, 129 S. Ct. 1423, 1429
(2009).
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The court did not plainly err in finding that his prior conviction was an aggravated felony under § 1326(b)(2) or in applying the 8-level enhancement under § 2L1.2(b)(1)(C). In United States v. Hernandez-Rodriguez, 467 F.3d 492, 495 (5th Cir. 2006), we held that a conviction of deadly conduct under § 22.05-(b)(1) constituted a COV for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) (applying 16-level enhancement for a “crime of violence”). We have not addressed whether a § 22.05(b)(2) conviction is an aggravated felony under § 1326(b)(2) and a COV for purposes of § 2L1.2(b)(1)(C), so any error was not clear or obvious. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 298 (5th Cir. 2008). Therefore, Mendez Carranza has not shown that the district court plainly erred in finding that his § 22.05(b)(2) conviction was an aggravated felony or in applying the 8-level felony enhancement pursuant to § 2L1.2(b)(1)(C). See id.; Puckett, 129 S. Ct. at 1429.
AFFIRMED.
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