### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20679 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. FRAN C I S CO CASTRO HERNANDEZ, also known as Fr a n c i s c o H e r n a n d e z , al s o known as Fredy Antonio Hernandez-Castro, also known as Francisco Castro-Hernandez, also known as Francisco Hernandez-Castro, also known as Francisco Castro, also known as Francisco Hernandez Castro, also k nown as Fredi A. T-Hernandez, also known as Fredi A. Tercero, a lso known a s Fredi A. Tercero Hernandez, also known a s Fredi A. Hernandez, also known as Fredi H. Tercero-H, a lso known as Fredy Tercero H e rnandez, also known as Freddie Antonio Hernandez, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12-CR-148-1

Before KING, DeMOSS, and GRAVES, Circuit Judges. PER CURIAM: * Francisco Castro Hernandez appeals the 70-month sentence he received following his guilty-plea convict ion for being an alien found u nlawfully in the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly30, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20679 Document: 00512325331 Page: 1 Date Filed: 07/30/2013No. 12-20679

United States a fter having been prev i ously d eported f ollowing an aggravated felony conviction, i n violation of 8 U.S.C. § 1326(b). He contends that his prior Texas conviction for attempted arson i s not a crime of violence u nder 1 8 U.S.C. § 16 or an a ggravated f elony under 8 U.S.C. § 1101(a)(43) and t h a t h e w as therefore e rroneously sentenced under the increased statutory m a ximum of § 1326(b)(2). Specifically, he a sserts that the Texas statute under w hich he was convicted does not require as an element the use of physical force or the use of such force against the property of another. T h e Government c ounters that Hernandez a ffirmatively waived the argument by raising it in his obj e c t i o n s to the presentence r eport but abandoning it at sentencing. It therefore asserts that the argument is not reviewable on a ppeal. W e do not d ecide the issue because, even i f Hernandez’s argument is forfeited rather than waived, i t fails under the otherwise applicable plain error standard. See United States v. Fernandez-Cusco , 447 F

. 3d 382, 384 (5th Cir. 2006); s ee also Puckett v. United States, 556 U.S. 129, 135 (2009)

. To show plain error, the appellant m ust show a forfeited error that is clear

or obvious and that affects his substantial rights. Puckett, 5 56 U.S. at 135. I f the appellant makes such a showing, this court has the discretion to correct the error but only if i t seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Subsection (b)(2) of § 1326 increases the a pplicable statutory maxi m um sentence if the defendant’s prior removal was s u b s e q uent to an aggravated felony conviction. See § 1326(b)(2). In the instant case, Hernandez was subject t o the h igher statutory penalties of § 1326(b)(2) based on his prior T e x a s conviction for attempted arson, in violation of T E X
. P E N A L C O D E AN N
. § 28.02. The term “aggravated felony” in § 1326(b)(2 ) i s defined b y 8 U.S.C. § 1101(a)(43). Arson is n o t specifically listed, but one of the subsections of § 1101 defines an aggravated felony as a “crime of violence (as defined in section 16 of Title 18

. . . for which the t e r m o f i m p r isonment [is] at l east one year.” See
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§ 1101(a)(43)(F). Section 16 of Title 18 does not list any enumerated offenses; it d e f i n e s a crime of vi olence more generally a s “an offense that has as an element the use, attempted use, or threatened u se of physical force against the
person or p roperty of another” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may used in the course of committing the offense.” This court h as not specifically addressed w hether Texas arson qualifies as
a crime of violence under § 1 6, or more generally a s an a ggravated felony under § 1101(a)(43). Consequently, the error Hernandez asserts is not clear or obvious under current law. See United States v. Rodriguez-Parra , 581 F.3d 227, 231 (5th Cir. 2009); see also United States v. Trejo , 610 F.3d 308, 319 (5th Cir. 2010). Alternatively, even if the district court clearly an d o b v i o usly erred in finding that Hernandez’s Texas conviction for attempted arson was a c r i me of viol e n c e u n d e r § 16 a nd, th us, an aggravated felony under § 1101(a)(43) and § 1 326(b)(2), Hernandez fails to show reversible plain error. His prior attempted

arson conviction is nevertheless a felony c onviction under § 1326(b)(1). See T E X
. P E N A L C O D E AN N
. § 28.02(d) and § 15.01(d). As such, H ernandez was subject to

a statutory maximum s entence of at l east 10 y ears of i m prisonment. See § 1326(b)(1). Because he received a sentence of 7 0 months, well less than either the 10- or 20-year maximums, Hernandez cannot s h ow that any error in finding t h a t h e was subject to a 2 0-year statutory maximum sentence a ffected h i s substantial rights. See Puckett, 556 U.S. at 135. The district court’s judgment is AFFIRMED.

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