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. 08-10131

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PABLO MARTIN ROSALES-MARTINEZ, also known as Martin Pablo

Martinez,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CR-254-ALL

Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Pablo Martin Rosales-Martinez pleaded guilty to violating 8 U.S.C. § 1326

by reentering the United States after having been deported. Finding that

Martinez had a prior Texas conviction for indecency with a minor, the district

court enhanced his base offense level on account of a felony conviction of a crime

of violence and sentenced him to 36 months in prison, which was below the

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-10131

See U.S.S.G. § 2L1.2(b)(1)(A)(ii). 1

See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition 2

for cert. filed (June 24, 2009) (No. 08-11099).

 386 U.S. 738 (1967). 3

See Shepard v. United States, 544 U.S. 13, 15 (2005). 4

2

guidelines range. Because he did not object to the enhancement or the sentence, 1

review is for plain error. 

2

Counsel for Martinez twice moved to withdraw pursuant to Anders v.

California. We denied both motions because of insufficient documentation in 3

the record that would identify the statute that was the basis for Martinez’s

Texas conviction. The parties have now supplemented the record with

appropriate documents from the state court.4

Martinez contends that the record did not establish definitively that he

had been convicted of indecency with a child under TEXAS PENAL CODE §

21.11(a)(1). He asserts the state record equally supports a finding that he had

been convicted of sexual assault under TEXAS PENAL CODE § 22.011(a)(2)(A),

which he contends is not a conviction for a crime of violence. We disagree.

The jury instructions produced by the Government in response to our

earlier order show that Martinez was charged with committing the crime of

indecency with a child by engaging “in sexual contact with a child younger than

17 years of age and not his spouse.” The language of the instructions tracks the

language of § 21.11(a)(1), which criminalizes conduct that this court has held

constitutes a crime of violence for purposes of § 2L1.2, specifically, the
No. 08-10131

See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008). We have also held that 5

a violation of § 21.11(a)(2) constitutes the offense of sexual abuse of a minor. See United States

v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). Thus, a conviction under either

subsection of § 21.11 would be for an offense that constitutes a crime of violence.

3

enumerated offense of sexual abuse of a minor. Given the language in the jury 5

instructions, there is no longer any question that Martinez was convicted under

§ 21.11(a)(1). 

Martinez’s Texas conviction was for a crime of violence. Accordingly there

was no error and the district court’s judgment is AFFIRMED.