IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51258

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LUIS LOPEZ-EUCEDA, also known as Luis Miguel Euceda-Lopez, 

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:12-CR-299

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Luis Lopez-Euceda (Lopez) appeals his 52-month sentence imposed 

following a guilty plea conviction for being found unlawfully present in the 

United States following deportation. He argues that the district court plainly 

erred in imposing a 16-level enhancement based on his prior Florida 

convictions for aggravated battery. The district court characterized those 

convictions as crimes of violence pursuant to U.S.S.G. 2L1.2(b)(1)(A)(ii). 

* 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

Fifth Circuit

FILED

April 13, 2015

Lyle W. Cayce

Clerk

 

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No. 12-51258

According to Lopez, aggravated battery under the Florida statute is not 

a crime of violence because it may be committed in ways that do not involve 

the use, attempted use, or threatened use of force. The Government was 

permitted to supplement the record to provide copies of the criminal 

informations and judgments documenting Lopez’s prior convictions for 

aggravated battery. The Government contends that the documents show that 

the offenses required as an element of proof the use of physical force or 

violence.

As Lopez concedes, he did not object to the enhancement in the district 

court and, therefore, review is for plain error. See Puckett v. United States, 556 

U.S. 129, 135 (2009). To establish reversible plain error, the appellant must 

show a forfeited error that is clear or obvious and that affects his substantial 

rights. Id. at 135. If the appellant makes such a showing, we have the 

discretion to correct the error but only if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id.

Section 2L1.2 provides that the offense level for unlawfully reentering 

the United States shall be increased by 16 levels if the defendant has a prior 

conviction for a crime of violence and the prior conviction receives criminal 

history points. § 2L1.2(b)(1)(A)(ii). The comments following that Guideline 

define a crime of violence as a number of enumerated offenses or any other 

offense that has as an element the use, attempted use, or threatened use of 

physical force against the person of another. § 2L1.2, comment. (n.1 (B)(ii)). 

If a statute has disjunctive subsections, we may apply a modified 

categorical approach to determine under which statutory subsection the 

defendant was convicted. See Descamps v. United States, 133 S. Ct. 2276, 2283-

85 (2013). Under that approach, we may review “the statutory definition, 

charging document, written plea agreement, transcript of plea colloquy, and 

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No. 12-51258

any explicit factual finding by the trial judge to which the defendant assented.” 

Shepard v. United States, 544 U.S. 13, 16 (2005).

In United States v. Ceron, 775 F.3d 222, 224 (5th Cir. 2014), the 

defendant also argued that the use of force was not a necessary element for a 

conviction under the same Florida aggravated battery statute, Fla. Stat. 

§ 784.045(1)(a)(1). Ceron held that the modified categorical approach could be 

applied in analyzing the statute because the aggravated battery offense 

required the defendant to be guilty also of simple battery, an offense defined 

in a separate statute, and the two statutes have “disjunctive subsections” 

giving rise to multiple, alternative versions of the crime. 775 F.3d at 228. The 

court noted that the defendant had been charged with actual and intentional 

touching or striking of the victim and with causing great bodily harm and that 

because the offense involved both of those elements, it necessarily involved the 

use of force. Id. at 228-29. 

The criminal informations and judgments supporting Lopez’s prior 

Florida aggravated battery convictions reflect that he also was charged with 

intentionally touching or striking the victims and with knowingly or 

intentionally causing great bodily harm and/or permanent disfigurement to 

the victims. Thus, in accord with the holding in Ceron, Lopez’s prior offenses 

also required proof of elements showing that a use of force was employed in 

committing the offenses. Lopez has not demonstrated that the district court 

committed error, plain or otherwise, in making the 16-level enhancement 

based on his prior aggravated assault convictions being a crime of violence. See 

Puckett, 556 U.S. at 135. His sentence is AFFIRMED.

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