* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40143

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ADELMO ISIDRO ROSALES-VELASQUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-1106-1

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Adelmo Isidro Rosales-Velasquez (Rosales) challenges his 63-month

sentence for illegally reentering the United States following removal. He asserts

that the district court plainly erred by entering a judgment reflecting that he

was convicted under 8 U.S.C. § 1326(b)(2) when he did not have a prior

conviction that qualified as an “aggravated felony.”

United States Court of Appeals

Fifth Circuit

F I L E D

January 21, 2009

Charles R. Fulbruge III

Clerk
No. 07-40143

2

Rosales correctly concedes that review is for plain error. See FED.R.CRIM.

P. 52(b); United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007), cert. denied,

128 S.Ct. 2959 (2008). To show plain error, he must show an error that is clear

or obvious and that affects his substantial rights. See United States v. Baker,

538 F.3d 324, 332 (5th Cir. 2008). “An error affects substantial rights if it

affect[s] the outcome of the district court proceedings.” Id. at 333 (internal

quotation marks omitted). If Rosales 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.

The maximum penalty for unlawful reentry of an alien whose removal was

subsequent to a prior felony conviction is 10 years. § 1326(b)(1). The maximum

penalty for unlawful reentry of an alien whose removal was subsequent to a

prior aggravated felony conviction is 20 years. § 1326(b)(2). An “aggravated

felony” is defined in relevant part as a crime of violence for which the

punishmentis no less than one year of imprisonment. 8 U.S.C. § 1101(a)(43)(F).

Rosales’s prior felony conviction for robbery is not an “aggravated felony”

for purposes of § 1326(b)(2) because he was sentenced to only 90 days. See

§ 1101(a)(43)(F). Accordingly, the district court committed a clear or obvious

error when it entered a judgment reflecting that he was convicted pursuant to

§ 1326(b)(2). See United States v. Campos, 277 F. App’x 505, 506 (5th Cir. 2008).

However, Rosales fails to show that the error affected his substantial rights

because there is no indication in the record that the district court’s sentencing

determination was influenced by an incorrect understanding of the statutory

maximum sentence. Moreover, his sentence falls below the statutory maximum

of 10 years under the correct subsection of § 1326(b). As a result, there was no

reversible plain error. See Baker, 538 F.3d at 333. The judgment, however, is

modified in accordance with this opinion to reflect a conviction pursuant to

§ 1326(b)(1). See United States v. Castro-Trevino, 464 F.3d 536, 543 n.16, 547

(5th Cir. 2006).
No. 07-40143

3

Rosales also asserts that the district court plainly erred by enhancing his

sentence under U.S.S.G. § 2L1.2. He asserts that the court relied solely upon the

presentence report to determine that his prior robbery offense was a crime of

violence when the definition of his robbery offense is broader than the ordinary,

contemporary, and common meaning ofthe enumerated offense of robbery under

§ 2L1.2. The Government asserts that Rosales waived any objection to the

enhancement.

“[W]aiver is the intentional relinquishment or abandonment of a known

right.” United States v. Olano, 507 U.S. 725, 733 (1993)(internal quotation

marks omitted). An attorney may waive his client’s objection under the

Guidelines so long as the record suggests that counsel made a knowing,

conscious choice to forgo the objection. See United States v. Arviso-Mata, 442

F.3d 382, 384 (5th Cir. 2006). Waiver extinguishes any error by the district

court, Olano, 507 U.S. at 733, because the court cannot be expected to override

the intentions of defense counsel and to assert a right on the defendant’s behalf

sua sponte. United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999).

Counsel’s statement to the court during sentencing that he had discussed the

crime of violence enhancement with the probation officer, reviewed the

applicable caselaw, and determined that Rosales’s prior offense was “sufficient

to enhance him the 16 levels” constituted waiver. See Arviso-Mata, 442 F.3d at

384.

Lastly, Rosales asserts that he received ineffective assistance of counsel

because his attorney failed to object to the application of § 1326(b)(2) and to the

crime of violence enhancement. Because the record has not been developed

sufficiently for us to evaluate this claim fully, we decline to address it on direct

appeal. See United States v. Gordon, 346 F.3d 135, 136-37 (5th Cir. 2003). The

judgment of the district court is AFFIRMED AS MODIFIED.