IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10602

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CECILIO MENDOZA-GARCIA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:12-CR-204-1

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Cecilio Mendoza-Garcia (Mendoza) pleaded guilty,

without a written plea agreement, to illegal re-entry after deportation and was 

sentenced at the bottom of the guidelines imprisonment range to a 41-month 

term of imprisonment and to a two-year period of supervised release. In 

determining the sentence, the district court applied the 16-level enhancement 

under U.S.S.G. § 2L1.2(b)(1)(A)(ii) related to Mendoza’s 1989 California 

* 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

August 7, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10602

conviction of unlawful sexual intercourse with a minor. Mendoza contends 

that imposition of the 16-level enhancement was procedurally unreasonable.

After United States v. Booker, 543 U.S. 220 (2005), sentences are 

reviewed for procedural error and substantive reasonableness under an abuse 

of discretion standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th 

Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). As Mendoza 

did not object to the procedural and substantive reasonableness of the 

sentence, our review is for plain error. See United States v. Peltier, 505 F.3d

389, 391-92 (5th Cir. 2007). To show plain error, Mendoza must show 

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

See Puckett v. United States, 556 U.S. 129, 135 (2009). If he 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. See 

id.

Citing United States v. Rodriguez-Guzman, 506 F.3d 738, 747 (9th Cir. 

2007), Mendoza asserts that the 41-month within-guidelines sentence imposed 

by the district court represents a clear error in judgment because the district 

court’s “sentencing calculus . . . did not reflect an understanding of the current 

circuit split of authority on the precise question raised, namely, whether age 

16 (or some other age) serves as the ‘age of consent’ involving consensual, 

sexual activity.” He acknowledges that we held, in United States v. Rodriguez, 

711 F.3d 541, 559-60 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013),

that the generic meaning of the term “minor” is a person under 18 years of age.

Given our en banc decision in Rodriguez, Mendoza cannot show that the 

district court committed a clear and obvious error in failing to recognize and 

consider Rodriguez-Guzman when it determined that Mendoza’s 1989 state 

conviction was a generic conviction of sexual abuse of a minor or statutory rape. 

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See Puckett, 556 U.S. at 135; see also Rodriguez, 711 F.3d at 559-60; 

§ 2L1.2(b)(1)(A)(ii) & comment. (n.B(iii)). Moreover, Mendoza has made no 

effort to show that his substantial rights were affected. See Puckett, 556 U.S. 

at 135. Neither has he shown why we should exercise our discretion to correct 

a sentence that was, under this circuit’s law, correctly calculated. See id.

Mendoza also contends that the sentence was substantively 

unreasonable because the district court failed to give adequate consideration 

to his history and characteristics and because the sentence was greater than 

necessary to satisfy the sentencing goals of deterrence and protection of the 

public. A presumption of substantive reasonableness applies to withinguidelines sentences. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 

2006). On this record, Mendoza cannot rebut that presumption. See United

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Neither can he show that 

the district court committed reversible plain error in applying the statutory 

sentencing factors. See Puckett, 556 U.S. at 135. The judgment is

AFFIRMED.

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