Filed: Mar. 08, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS March 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-50281 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BERNARDO OCHOA-CRUZ, also known as Bernardo Canales, also known as Inuc Ochoa-Cruz, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Before KING, SMITH, and BENAVIDES, Circuit Judges. PER CURIAM: This case concerns the evidence and con
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS March 7, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-50281 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BERNARDO OCHOA-CRUZ, also known as Bernardo Canales, also known as Inuc Ochoa-Cruz, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Before KING, SMITH, and BENAVIDES, Circuit Judges. PER CURIAM: This case concerns the evidence and cons..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50281
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERNARDO OCHOA-CRUZ, also known as Bernardo Canales, also
known as Inuc Ochoa-Cruz,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:
This case concerns the evidence and considerations required
before a district court can make a determination that a defendant
has previously committed a crime of violence to allow a sentencing
enhancement. Bernardo Ochoa-Cruz, the Appellant, pleaded guilty to
an illegal reentry charge and subsequently received a sixteen-level
sentencing enhancement based on previous convictions listed in his
presentencing report (“PSR”). Ochoa-Cruz argues that the district
court erred by solely relying on the PSR in determining that the
convictions were crimes of violence.1 As explained below, the
district court did err in its reliance on the PSR, but Ochoa-Cruz
has failed to prove that this error affected his substantial
rights. Accordingly, Ochoa-Cruz has failed to establish the third
component necessary for showing the error complained of for the
first time on appeal is plain error.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ochoa-Cruz pleaded guilty to illegal reentry under 8 U.S.C.
§ 1326(a)(1) (2000). The PSR recommended a sixteen-level
enhancement for prior “crime of violence” convictions. See 8
U.S.C. § 1326(b)(2) (2000); U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2004).
At sentencing, the court accepted the PSR’s recommendation and did
not make an independent determination of whether Ochoa-Cruz had
previously committed crimes of violence. The convictions at issue
both came under Maryland law, one for “assault in the second
degree” and another for “carrying a weapon openly with intent to
injure.” Ochoa-Cruz did not object to the court’s reliance on the
PSR. The court sentenced Ochoa-Cruz to fifty-seven months’
imprisonment. Ochoa-Cruz appealed.
1
Ochoa-Cruz is not arguing that the convictions are
nonviolent. Infra Part III.A.3. Similarly, he does not dispute
that he committed the offenses listed in the PSR.
2
II. STANDARD OF REVIEW
Ochoa-Cruz concedes that plain error review is appropriate,
given that he raises this issue for the first time on appeal.2
Plain error exists when: “(1) there was an error; (2) the error was
clear and obvious; and (3) the error affected the defendant’s
substantial rights.” United States v. Villegas, 404 F.3d 355, 358
(5th Cir. 2005). Even if these three conditions are met, an
appellate court may exercise its discretion only if “the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.”
Id. at 358–59.
III. DISCUSSION
A. Plain Error Review of the Court’s Reliance on the PSR
1. There Was an Error
Under the categorical approach for sentence enhancements, a
court determines the nature of a prior conviction by examining the
statute under which the conviction was attained. See Taylor v.
United States, 495 U.S. 575, 602 (1990); see also Shepard v. United
States,
544 U.S. 13, __,
125 S. Ct. 1254, 1257 (2005) (holding that
for a guilty plea conviction, review is “limited to examining the
2
Contrary to the government’s assertions, Ochoa-Cruz did
not waive the argument. Waiver is defined as the “intentional
relinquishment or abandonment of a known right.” United States
v. Olano, 507 U.S. 725, 732 (1993). There is no evidence that
Ochoa-Cruz intentionally relinquished his right to challenge the
district court’s sole reliance on the PSR.
3
statutory definition, charging document, written plea agreement,
transcript of the plea colloquy, and any explicit factual finding
by the trial judge to which the defendant assented”). Neither
Taylor nor Shepard permits a district court to enhance a sentence
based solely on the type of PSR here, a mere characterization that
the offenses were crimes of violence. This naturally follows the
reasoning of the categorical approach, which calls upon courts to
look at the statutes at issue rather than the specific acts of the
defendant. Here, the district court failed to make the necessary
inquiry. Therefore, the court erred.
2. The Error Was Clear and Obvious
Relying on the PSR alone was clearly and obviously erroneous,
as doing so conflicted with both Taylor and Shepard as well as the
underlying themes of the categorical approach. See United States
v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (specifically
directing courts to analyze the statutory definition of an offense
when determining whether it is a crime of violence).
3. The Error Did Not Affect Ochoa-Cruz’s Substantial Rights
To show that the error affected his substantial rights, Ochoa-
Cruz must show a reasonable probability that, but for the error, he
would have received a lesser sentence. Villegas, 404 F.3d at 364.
He bears the burden of proving that the error affected his
substantial rights. United States v. Olano,
507 U.S. 725, 734
(1993). Ochoa-Cruz does not satisfy this burden.
4
Ochoa-Cruz fails to argue that his convictions do not
constitute crimes of violence. Indeed, he explicitly states that
he “does not assert that . . . the listed convictions are not the
kind that could be used to support the enhancement.” Without at
least arguing that the crime of violence enhancement was ultimately
wrong, Ochoa-Cruz cannot show that he would have received a lesser
sentence.
Instead of addressing the underlying nature of the offenses,
Ochoa-Cruz imagines “scenarios” under which the sixteen-level
enhancement vanishes, leaving him with shorter sentences. In doing
so, he assumes, without even attempting to prove, that the Maryland
offenses are not violent crimes. As Ochoa-Cruz has failed to make
the argument, we need not determine whether the statutes at issue
define nonviolent felonies. Cf. United States v. Lynch, 145
F.App’x. 482, 485 (5th Cir. 2005) (unpublished) (determining that
the statute at issue defined a violent felony when defendant
claimed it did not).
B. Ochoa-Cruz’s Constitutional Argument
Ochoa-Cruz also argues that his sentence violated his
constitutional rights because the court treated the prior
convictions as sentencing factors rather than elements of the
offense that must be found by a jury. See Apprendi v. New Jersey,
530 U.S. 466 (2000). He acknowledges that this argument is
foreclosed by Almendarez-Torres v. United States,
523 U.S. 224
5
(1998). As we are bound by Almendarez-Torres, we find that there
was no constitutional violation. See United States v. Garza-Lopez,
410 F.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005).
IV. CONCLUSION
Ochoa-Cruz failed to prove that the court’s reliance on the
PSR alone affected his substantial rights. Ochoa-Cruz has not met
his burden, as he failed to claim, much less show, that absent the
error a reasonable probability existed that he would have received
a lesser sentence. In addition, his constitutional argument is
barred by Supreme Court and Fifth Circuit precedent. For these
reasons, the sentence is AFFIRMED.
6
