### 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

Appeal s 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 a ssessed 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 21, 2017 Lyle W. Cayce Clerk Case: 16-10461 Document: 00514042552 Page: 1 Date Filed: 06/21/2017No. 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 g overnment has the burden of proving “by a prep onderance 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 th at the state court records offered by the g overnment 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 h is conviction

m ight 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, s ee United States v. Rodriguez , 602 F.3d 346, 361 (5th Cir. 2010), the records a re sufficiently reliable to establish that Salgado

Rosales was convicted under § 22.02. The initial and amended judgment s 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 othe r offense or statute

. Salgado

- Rosales’s contention that the amended judgment reflects the possibility that hi s 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 S algado

Rosales has failed to show a clear or obvious error in the district court’s Case: 16-10461 Document: 00514042552 Page: 2 Date Filed: 06/21/2017No. 16

- 10461

3 conclusion that he comm itted 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 ca se should be remanded for resentencing to enable the district court to consider whether a lesser sentence is appropriate in light of a November 2016 am endment 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, 37 9 (5 th 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. Case: 16-10461 Document: 00514042552 Page: 3 Date Filed: 06/21/2017