IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20500

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FLORENCIO MENDEZ PALMA, also known as Florencio Palma Mendez, also

know as Florencio M. Palma,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CR-38-1

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

After Defendant-Appellant Florencio Mendez Palma pleaded guilty to

being an alien found in the United States after having been deported, in

violation of 8 U.S.C. § 1326, he was sentenced to 36 months of imprisonment. 

For the first time on appeal, Palma contends that the district court erred in

applying a 16-level enhancement based on the record before it and in sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2012

Lyle W. Cayce

Clerk

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.

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No. 10-20500

him under the statutory maximum set forth in 8 U.S.C. § 1326(b)(2), because he

did not admit the fact of his prior deportation.

As Palma did not raise these issues in the district court, review is for plain

error. See United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). To

demonstrate plain error, Palma must show a forfeited error that is clear or

obvious and that affects his substantial rights. Puckett v. United States, 556

U.S. 129, 135 (2009). If Palma 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.

Palma claims that the district court plainly erred in applying a 16-level

enhancement based on his prior conviction for aggravated sexual assault which

the presentence report (PSR) characterized as a crime of violence. See U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) (Nov. 2009). To the extent that the district court relied solely

on the PSR to make its determination that this prior conviction was a crime of

violence, this was error. See United States v. Garza–Lopez, 410 F.3d 268, 274

(5th Cir. 2005). The district court may, however, use facts admitted by the

defendant in making this determination. See United States v. Martinez-Vega,

471 F.3d 559, 563 (5th Cir. 2006). Through counsel, Palma indicated that he had

no dispute with the facts set forth in the PSR. He has, therefore, failed to show

error that was clear or obvious in this regard. See id. Moreover, by failing to

assert that his conviction was not a crime of violence as defined in the

commentary to § 2L1.2, Palma has failed to show that he would have received

a lesser sentence. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.

2006).

Relying on United States v. Rojas-Luna, 522 F.3d 502, 504 (5th Cir. 2008),

Palma contends that because he did not admit the fact of his prior deportation,

the district court plainly erred in sentencing him under the statutory maximum

set forth in § 1326(b)(2). Although Palma did not explicitly admit the fact of his

prior deportation at rearraignment, his plea of “guilty” immediately following

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No. 10-20500

the government’s proffer and the district court’s explanation of the elements of

the offense was tantamount to an admission. In addition, the district court was

entitled to rely on Palma’s admission of the facts contained in the PSR to apply

§ 1326(b)(2)’s statutory maximum. See United States v. Ramirez, 557 F.3d 200,

204-05 (5th Cir. 2009). On these facts, the district court did not clearly or

obviously err by applying the enhanced penalty range of § 1326(b)(2).

The judgment of the district court is AFFIRMED.

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