IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20679

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO CASTRO HERNANDEZ, also known asFrancisco Hernandez, also

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 known as

Fredi A. T-Hernandez, also known as Fredi A. Tercero, also known as Fredi A.

Tercero Hernandez, also known as Fredi A. Hernandez, also known as Fredi H.

Tercero-H, also known as Fredy Tercero Hernandez, 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 conviction for being an alien found unlawfully in the

United States Court of Appeals

Fifth Circuit

F I L E D

July 30, 2013

Lyle W. Cayce

Clerk

* 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. 12-20679

United States after having been previously deported following an aggravated

felony conviction, in violation of 8 U.S.C. § 1326(b). He contends that his prior

Texas conviction for attempted arson is not a crime of violence under 18 U.S.C.

§ 16 or an aggravated felony under 8 U.S.C. § 1101(a)(43) and that he was

therefore erroneously sentenced under the increased statutory maximum of

§ 1326(b)(2). Specifically, he asserts that the Texas statute under which 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.

The Government counters that Hernandez affirmatively waived the

argument by raising it in his objections to the presentence report but

abandoning it at sentencing. It therefore asserts that the argument is not

reviewable on appeal. We do not decide the issue because, even if Hernandez’s

argument is forfeited rather than waived, itfails under the otherwise applicable

plain error standard. See United States v. Fernandez-Cusco, 447 F.3d 382, 384

(5th Cir. 2006); see also Puckett v. United States, 556 U.S. 129, 135 (2009).

To show plain error, the appellant must show a forfeited error that is clear

or obvious and that affects his substantial rights. Puckett, 556 U.S. at 135. If

the appellant makes such a showing, this court has the discretion to correct the

error but only if it seriously affects the fairness, integrity, or public reputation

of judicial proceedings. Id.

Subsection (b)(2) of § 1326 increases the applicable statutory maximum

sentence if the defendant’s prior removal was subsequent to an aggravated

felony conviction. See § 1326(b)(2). In the instant case, Hernandez was subject

to the higher statutory penalties of § 1326(b)(2) based on his prior Texas

conviction for attempted arson, in violation of TEX. PENAL CODE ANN. § 28.02. 

The term “aggravated felony” in § 1326(b)(2) is defined by 8 U.S.C.

§ 1101(a)(43). Arson is not 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 term of imprisonment [is] at least one year.” See

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§ 1101(a)(43)(F). Section 16 of Title 18 does not list any enumerated offenses;

it defines a crime of violence more generally as “an offense that has as an

element the use, attempted use, or threatened use of physical force against the

person or property 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 has not specifically addressed whether Texas arson qualifies as

a crime of violence under § 16, or more generally as an aggravated 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 and obviously erred in

finding that Hernandez’s Texas conviction for attempted arson was a crime of

violence under § 16 and, thus, an aggravated felony under § 1101(a)(43) and

§ 1326(b)(2), Hernandez fails to show reversible plain error. His prior attempted

arson conviction is nevertheless a felony conviction under § 1326(b)(1). See TEX.

PENAL CODE ANN. § 28.02(d) and § 15.01(d). As such, Hernandez was subject to

a statutory maximum sentence of at least 10 years of imprisonment. See

§ 1326(b)(1). Because he received a sentence of 70 months, well less than either

the 10- or 20-year maximums, Hernandez cannot show that any error in finding

that he was subject to a 20-year statutory maximum sentence affected his

substantial rights. See Puckett, 556 U.S. at 135. 

The district court’s judgment is AFFIRMED.

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