The Government maintains that our review should be for plain error because Amaya failed to preserve the issue by misstating the subsection under which his sentence was enhanced during his sentencing hearing. We review properly preserved objections to a district court s interpretation of the Guidelines de novo and the district court s factual determinations for clear error. Although post-Booker the Sentencing Guidelines are advisory only, the district court must still properly calculate the Guidelines-sentencing range when imposing a sentence. After addressing the propriety of the 16-level enhancement, the district court sentenced Amaya to 42 months of imprisonment. The district court also recognized the possibility that his previous conviction qualified as sexual abuse of a minor, but it applied the enhancement based solely on the forcible sex offense rationale. The district court overruled Amaya s objection and added the 16-level crime of violence enhancement, holding that Amaya s 2005 conviction met the definition of a forcible sex offense, which is an enumerated offense under the Guidelines. 2 At his sentencing hearing, Amaya again raised his objection to the 16-level enhancement, but did so under the incorrect subsection of § 2L1.2. 13-40080 The Probation Office filed an addendum to the PSR, which noted that Amaya s 2005 Iowa conviction qualified as a crime of violence under the definitions of two enumerated offenses, either as a forcible sex offense or as sexual abuse of a minor. § 2L1.2(b)(1)(C), which mandates an increase of 8 offense levels when the offender has a prior conviction for an aggravated felony. 1 Amaya appears to have mistakenly objected to the application of U.S.S.G. Amaya filed a written objection to the PSR s recommendation of a 16-level crime of violence enhancement he contended that the 2005 Iowa conviction was not an aggravated felony because it was a general intent crime with no requirement that there be actual physical contact. With his total offense level of 21, the Guidelines advisory sentencing range was 37 to 46 months. Amaya received a three-level reduction for acceptance of responsibility. § 2L1.2(b)(1)(A)(ii) for a crime of violence based on his 2005 Iowa conviction. The probation officer recommended a base offense level of eight and a 16 level enhancement pursuant to U.S.S.G. According to the original pre-sentencing report ( PSR ), Amaya s total offense level was 21. Amaya was arrested and indicted for being unlawfully present in the United States after deportation subsequent to a felony conviction in violation of 8 U.S.C. A background check revealed in 2005 he had pled guilty to, and been convicted of, assault with intent to commit sexual abuse in an Iowa state court, for which he received a two-year suspended sentence. In June 2012, Customs and Border Protection agents encountered him illegally entering the United States near Brownsville, Texas. Amaya is a 32-year-old citizen of El Salvador. that has as an element the use, attempted use, or threatened use of physical force against the person of another ). Amaya contends that this conviction is neither an enumerated offense under § 2L1.2 s definition of a crime of violence, nor fits within that section s residual clause (because it is not any other offense. 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. In applying the 16-level enhancement, the district court referred to Amaya s 2005 Iowa conviction for Assault with Intent to Commit Sexual Abuse. Amaya s sole issue on appeal involves the district court s addition of a 16-level enhancement for a previous conviction constituting a crime of violence under U.S.S.G. § 1326(a) and (b)(1), for being unlawfully present in the United States after deportation subsequent to a felony conviction. PER CURIAM:* Carlos David Amaya pled guilty to a violation of 8 U.S.C. 1:12-CR-563 Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges. CARLOS DAVID AMAYA, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. Case: 13-40080 Document: 00512719940 Page: 1 Date Filed: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No.
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