### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 Mende z Palma pleaded guilty to b eing an alien found in the United States after having been deported, in violation of 8 U.S.C. § 1326, he was sentenced to 36 month s of imprisonment. For the first time on appeal , P alma contends that the district court erred in applying a 16-level enhancement based on the record before it and in sentencing U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 22 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-20500 Document: 00511764484 Page: 1 Date Filed: 02/22/2012No. 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 co u rt, review is for plain

error. See United States v. Whitelaw , 580 F.3d 256, 2 5 9 ( 5 th C ir. 2009). To demonstrate plain error, Palma must show a forfeited error that is c l e ar 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 co u rt 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, u se facts admitted by the defendant in makin g 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 failin g t o assert that h i s c o nviction was not a crime of violence as defined in the commentary to § 2L1.2, Palma has failed to show that he would have re c e iv ed

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
2 Case: 10-20500 Document: 00511764484 Page: 2 Date Filed: 02/22/2012No. 10-20500

the government’s proffer and the district co u rt’s explanation of the elements of the offense was tantamount to an admission. In addition, the district co u rt 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 co u rt is AFFIRMED.

3 Case: 10-20500 Document: 00511764484 Page: 3 Date Filed: 02/22/2012