### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 10963 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
JOSE MARIO AREVALO , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:11

- CR

- 283

- 1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * Jose Mario Arevalo appeals the sentence imposed after he pleaded guilty
to illegal reent ry after prior deportation. He maintains that the district court wrongly assessed a 16

- level enhancement under U.S.S.G. § 2L1.2 based on his prior Maryland offenses of “assault in the f irst degree” and “use of a handgun in a crime of violence and the commission of a felony offense.” The district

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 16, 2013 Lyle W. Cayce Clerk Case: 12-10963 Document: 00512472392 Page: 1 Date Filed: 12/16/2013No. 12

- 10963

court concluded that the offenses constituted a “crime of violence” pursuant to § 2L1.2(b)(1)(A)(ii) , and a “firearms offense” pursuant to § 2L 1.2(b)(1)(A)(iii). Arevalo did not object to the 16

- level enhan cement in the district court. Thus , our review is for plain error. See United States v. Chavez

- Hernandez , 67 1 F.3d 494, 497 (5th Cir. 2012). Arevalo must show that the district court commi tted an error that is “ clear or obvious, rather tha n subject to reasonable debate.” Puckett v. United States , 556 U.S. 129, 135 (2009) ; United States v. Ellis , 564 F.3d 370, 377

- 78 (5th Cir. 2009). He also must show that the error af fected his substantia l rights. Puckett , 129 U.S. at 135. If he makes these showings, we have discret ion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. Id

. Arevalo argues that neither of his prior Maryland offenses merits a 16

- level e nhancement. He contends that the Maryland statute proscribing “first

degree assault” can be violated in more than one way and that one of the means of commission does not satisfy the definition of a “crime of violence ”; he ass erts that the state court records do not establish which provision of the statute he violated and, th erefore , there is no basis to resolve the appropriateness of the enhancement. Arevalo further contends that his prior Maryland offense of “use of a handgu n in a crime of violence and the commission of a felony offense” does not satisfy the definition of a “ firearms offense” because the Maryland statute , which, inter alia, does not except antique firearms or require that the firearm be operable , is broader t han the generic definition of a “firearms offense

. ” The Government argues that both prior offenses merit the enhancement. It asserts that the Maryland offense of “first

- degree assault” is categorically a “crime of violence” because the crime necessari ly requires the use, attempted use, or threatened use of physic al force against another person ; it argues that the state court records therefore do not need to be reviewed to decide whether

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the enhancement was properl y applied

. Moreover, the Government co ntends that the Maryland offense of “use of a handgun in a crime of violence and the commission of a felony offense” is a “firearms offense”; the Government argues that the Maryland statute’s inclusion of antique or inoperable firearms does
not render the statute broader than the generic definition of a “firear ms offense

. ” Alternatively, t he Government asserts that the Maryland offense of “use of a handgun in a crime of violence and the commission of a felony” satisfies the def inition of a “crime of violen ce. ” Neither this court nor any other circuit court has held that, or analyzed whether, the Maryland offenses of “first

- degree assault” or “use of a handgun in a crime of violence and the commission of a felony offense” merit a 16

- level enhancement und er § 2L1.2. However, as this a ppeal involves only plain

- error review, we need not decide conclusively whether the Maryland offenses satisfy the definitions of “crime of violence” or “firearms offense” under § 2 L1.2. O ur review of the parties’ arguments a nd the law reveal s that whether the district
court appropriately applied the enhancement is “subject to reasonable debate.” Thus, Arevalo has not shown that any error is clear or obvious. See Puckett , 556 U.S. at 135; Ellis , 564 F.3d at 377

– 78. Because Arevalo has failed to show plain error, the judgment of the district court is AFFIRMED.

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