Filed: Feb. 10, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS February 10, 2004 For the Fifth Circuit Charles R. Fulbruge III _ Clerk No. 03-20102 _ UNITED STATES OF AMERICA Plaintiff-Appellee VERSUS ARMANDO LOPEZ HERNANDEZ Defendant-Appellant _ Appeal from the United States District Court for the Southern District of Texas (H-02-CR-544-1) _ Before DAVIS & EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge. LITTLE, District Judge:** Appellant, Armando Lopez Hern
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS February 10, 2004 For the Fifth Circuit Charles R. Fulbruge III _ Clerk No. 03-20102 _ UNITED STATES OF AMERICA Plaintiff-Appellee VERSUS ARMANDO LOPEZ HERNANDEZ Defendant-Appellant _ Appeal from the United States District Court for the Southern District of Texas (H-02-CR-544-1) _ Before DAVIS & EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge. LITTLE, District Judge:** Appellant, Armando Lopez Herna..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 10, 2004
For the Fifth Circuit
Charles R. Fulbruge III
____________________________ Clerk
No. 03-20102
____________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
VERSUS
ARMANDO LOPEZ HERNANDEZ
Defendant-Appellant
______________________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-02-CR-544-1)
______________________________________________________________________________
Before DAVIS & EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge.
LITTLE, District Judge:**
Appellant, Armando Lopez Hernandez (“Hernandez”) questions the district court’s judgment
of conviction and sentence entered in January 2003. Specifically, Hernandez asserts that the district
court improperly credited him with a state court conviction for aggravated assault. In so doing,
the criminal history points accorded to Hernandez under U.S. Sentencing Guideline (“USSG”)
§§ 4 A1.1 (c) & (d) were excessive and should not have been assessed. As we explain in this opinion,
the district court correctly applied the appropriate number of criminal history points. Thus, we affirm
the district court’s sentence.
____________________________________
*District Judge of the Western District of Louisiana, sitting by designation.
**Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not
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precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
BACKGROUND
The material uncontested facts preceding the district court’s imposition of sentence are
uncomplicated. Hernandez was indicted on 7 August 2002 in the Houston Division of the Southern
District of Texas for illegal reentry after deportation after an aggravated felony conviction, in
violation of 8 U.S.C.§ 1326 (a)(b)(2). The government alleges that on 3 July 1996, Hernandez was
convicted of felony aggravated assault in a Texas state court and sentenced to five years in prison,
probated for five years. Hernandez is a citizen of Mexico, and as a result of the state court felony
conviction, was deported to his co untry of origin in July of 1996. Less that five years after
deportation, Hernandez illegally reentered the United States. During the period of illegal reentry,
Hernandez admitted to the commission of two crimes in North Carolina. The North Carolina
convictions resulted in jail time sentences.
On 27 June 2002, the INS located Hernandez in Houston, where he was incarcerated for
state probation violations. On 12 July 2002, Hernandez’s aggravated assault conviction was revisited
by Texas state judicial process. The writing dealing with the former state court conviction declared
“Therefore, the community supervision period is terminated, and it is ordered, adjudged , and
decreed: unsatisfactorily terminated-void judgment.” Hernandez entered a guilty plea to
illegal reentry.
Subsequent to the guilty plea, the U.S. Probation officer prepared a Presentence Report
(“PSR”). In that report, the probation officer calculated the defendant’s criminal history points. The
calculation included points for the state court aggravated assault conviction. The PSR suggested
that Hernandez had experienced a total offense level of twenty one points, which included a sixteen-
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level increase for the Texas aggravated assault conviction. The criminal history category was also
impacted by the Texas felony conviction. The sentence range suggested by the U.S.S.G.
was 46 to 57 months.
Hernandez found fault with the calculations of the probation officer. He contended to the
sentencing judge, and in these proceedings as well, that the Texas state court felony judgment is void
and that no points to his detriment should flow from that whitewashed judgment.
The meaning of the phrase “unsatisfactorily terminated-void judgment” was the topic of
further investigation by the probation officer. After discussions with Texas state court personnel, the
probation officer amplified her original PSR. She informed the court and the defendant that the
phrase did not void the underlying criminal conviction but was standard verbiage employed by the
court to terminate community supervision or probation. The probation portion of the judgment
tethered to the criminal judgment was terminated due to Hernandez’s post conviction illegal activity.
The probation officer, reflecting an apparent attitude of fairness, invited Hernandez to supply
documentation to support his position that the entire criminal judgment was void. No additional
information was provided to the trial court. The trial court adopted the PSR. A 57 month sentence
was imposed. This appeal followed the imposition of sentence.
ANALYSIS
The legal interpretation and application of the sentencing guidelines are reviewed de novo by
this court. We review the factual findings of the trial court in connection with sentencing for clear
error. United States. v. Parker, 133 F.3d 322, 329 (5th Cir.1998) (citation omitted). The burden is
upon Hernandez to prove that the state court in fact declared his aggravated assault conviction void.
Facts contained in a PSR are considered reliable and may be adopted without further
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inquiry if the defendant fails to present competent rebuttal evidence. See United States
v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Such rebuttal evidence must
demonstrate that the PSR information is “materially untrue, inaccurate or unreliable,” see
United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). Mere objections do not
suffice as competent rebuttal evidence. See Puig-Infante, 19 F.3d at 943.
United States v.
Parker, 133 F.3d at 329.
The probation officer determined from state court authorities that the probation portion of
the criminal judgment had been terminated in standard form, not the entire judgment. The trial court
adopted that analysis. Hernandez failed to disabuse the court from that determination. The judgment
is AFFIRMED.
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