* District Judge of the Southern District of Texas, sitting

by designation.

** 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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30809

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ERICK FRANCISCO SAMAYOA-GONZALES,

also known as Eric Samayoa,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

(98-CR-14)

August 25, 1999

Before DeMOSS and PARKER, Circuit Judges, and LAKE,* District

Judge.

PER CURIAM:**

Appellant-defendant, Erick Francisco Samayoa-Gonzales

(“defendant”) pleaded guilty to unlawful entry into the United

States following deportation in violation of 8 U.S.C. § 1326(b)(2).

In this appeal we are asked to decide whether the district court

erred in using the defendant’s prior juvenile adjudication for

second degree battery as a basis for enhancing his sentence under

8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2. As written, those
 

1 U.S.S.G. § 2L1.2 provides in relevant part:

(1) If the defendant previously was deported

after a criminal conviction, or if the

defendant unlawfully remained in the United

States following a removal order issued after

a criminal conviction, increase as follows (if

more than one applies, use the greater):

 (A) If the conviction was for an

aggravated felony, increase by 16 levels.

U.S.S.G. § 2L1.2.

 

2 Though the defendant concedes that a conviction for

second degree battery under Louisiana law would normally qualify as

a conviction for an “aggravated felony” under the enhancement

provisions, he asserts that an “adjudication of delinquency” in

juvenile court is not a cognizable conviction under § 1326(b)(2)

and § 2L1.2.

 

3 The record in this case reflects that the applicability

of a 16 level enhancement under U.S.S.G. § 2L1.2 was suggested by

the probation department in its presentence report. After that

report was completed, the defendant filed a presentence brief in

which he moved the court to downwardly depart on the ground that

the minimum sentence was too severe, and that he was truly

remorseful for his misdeeds.

2

provisions enhance a defendant’s offense level by 16 levels if the

defendant unlawfully enters the United States after having been

previously “convicted” of an aggravated felony.1 The precise issue

we must address in this appeal is whether a juvenile adjudication

in Louisiana qualifies as a “conviction” under those enhancement

provisions.2 To the best of our knowledge, it is an issue of first

impression in this Circuit and in the United States Court of

Appeals generally.

The defendant in this case failed to properly raise this issue

before the district court.3. The defendant did not file formal
 At no point, however, did the defendant challenge the proposed

enhancement under § 2L1.2 based on his prior juvenile adjudication.

In fact, in his presentence brief

the defendant expressly acknowledged the applicability of that

provision:

Pursuant to 8 U.S.C. Section 1326, the

defendant is subject to a maximum sentence of

20 years and a maximum fine of $250,000.

Given his conviction for car theft and

aggravated battery, the defendant is

considered to be an “aggravated felon” for

purposes of 8 U.S.C. § 1326 . . . . The

defendant would respectfully suggest that

there are no mitigating statutes or case law

in his favor in this matter. Also, addressing

the court’s question as to the [sic] whether

the defendant’s youth, and his conviction of

an aggravated felony as a juvenile, are

mitigating factors, the defendant respectfully

concedes that there is no case law or other

statute law that would militate against the

imposition of such a sentence as recommended

in the Federal Sentencing Guidelines. 

Then, at the subsequent sentencing hearing, the defendant raised no

objections to the presentence report and, more importantly, raised

no complaint to the use of his juvenile adjudication to enhance his

sentence under § 2L1.2.

 

6 To prevail on a claim raised for the first time on

appeal, an appellant must show (1) the existence of actual error;

(2) that the error was plain; and (3) that it affects substantial

rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.

1994) (en banc). In Calverley we explained plain error in the

3

objections to the presentence report.4

. The defendant eventually raised this objection in a motion to

correct sentence pursuant to Rule 35(c) of the Federal Rules of

Criminal Procedure. See Fed. R. Crim. P 35(c). The district court

denied the motion.5 Thus, we must review his claim under our plain

error standard, United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc).6 Applying that stringent standard to
following terms: “[p]lain is synonymous with ‘clear’ or ‘obvious,’

and ‘[a]t a minimum,’ contemplates an error which was ‘clear under

current law at the time of trial.’" Id. at 162-63.

g:\opin\98-30809.opn 4

the facts of this case, we cannot conclude that the district

court’s ruling was plainly erroneous.

AFFIRMED.