IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10461

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WALTER JAVIER SALGADO-ROSALES,

Defendant-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:15-CR-262-1

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Walter Javier Salgado-Rosales pleaded guilty to 

illegal reentry following deportation and was sentenced to 63 months of 

imprisonment. He contends on appeal that the district court wrongly assessed 

a 16-level enhancement under U.S.S.G. § 2L1.2 based on his prior conviction 

for a crime of violence. Salgado-Rosales did not preserve this issue in the 

 

* 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

June 21, 2017

Lyle W. Cayce

Clerk

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No. 16-10461

2

district court so our review is for plain error. See Puckett v. United States, 556 

U.S. 129, 134-35 (2009).

The government has the burden of proving “by a preponderance of the 

relevant and sufficiently reliable evidence the facts necessary to support the 

adjustment.” United States v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 

1997) (internal quotation marks and citation omitted). Salgado-Rosales

maintains that the state court records offered by the government in the district 

court are inconsistent as to the identity of his prior offense and thus are not 

determinative of whether he was convicted of a crime of violence. He argues 

that, although the records all state that he was convicted of aggravated assault 

under Texas Penal Code § 22.02, which is a crime of violence, a notation in the 

amended judgment about the degree of the offense suggests that his conviction 

might have been for simple assault under Texas Penal Code § 22.01, which is 

not a crime of violence. See United States v. Fierro-Reyna, 466 F.3d 324, 327-

28 (5th Cir. 2006); United States v. Guillen-Alvarez, 489 F.3d 197, 200-01 (5th 

Cir. 2007). 

To the extent that the instant claim does not involve an issue of fact that 

cannot constitute plain error, see United States v. Rodriguez, 602 F.3d 346, 361 

(5th Cir. 2010), the records are sufficiently reliable to establish that SalgadoRosales was convicted under § 22.02. The initial and amended judgments are 

unambiguous as to the nature of the offense and the statute of conviction and 

no state court record contains an express reference to any other offense or 

statute. Salgado-Rosales’s contention that the amended judgment reflects the 

possibility that his offense was reduced to simple assault under § 22.01 is 

speculative and finds no support in the record. The documents instead reflect

that the amended judgment contains a typographical error. As SalgadoRosales has failed to show a clear or obvious error in the district court’s 

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conclusion that he committed a crime of violence, he has failed to show that 

the district court plainly erred. See Puckett, 556 U.S. at 135.

Salgado-Rosales further contends that his case should be remanded for 

resentencing to enable the district court to consider whether a lesser sentence 

is appropriate in light of a November 2016 amendment to § 2L1.2. He asserts

that the amendment, which was not in effect at the time of his sentencing, has

rendered his sentence excessive. He failed to raise this contention in the 

district court, so we review for plain error. See Puckett, 556 U.S. at 134-35.

The district court appropriately applied the Sentencing Guidelines that 

were in effect at the time of sentencing. See United States v. Rodarte-Vasquez, 

488 F.3d 316, 322 (5th Cir. 2007). The court did not plainly err by not 

considering pending or intervening amendments to the Guidelines. See United 

States v. Garcia-Carrillo, 749 F.3d 376, 379 (5th Cir. 2014). Salgado-Rosales

is not entitled to resentencing based on the amendments. See United States v. 

Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998).

The judgment of the district court is AFFIRMED.

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