United States v. Alfonso Rodriguez-Rodriguez
2015 U.S. App. LEXIS 24
5th Cir.2015Background
- Defendant Alfonso Rodriguez pleaded guilty to illegal reentry after a prior Texas stalking conviction under Tex. Penal Code § 42.072.
- The PSR applied a 16-level "crime of violence" (COV) enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the stalking conviction, producing a Guidelines range of 57–71 months.
- Rodriguez objected that the Texas stalking statute does not necessarily include the use or threatened use of physical force; without the enhancement the range would be 15–21 months.
- The district court overruled the objection, adopted the enhanced Guidelines calculation, but stated it would impose the same sentence (60 months) even using non-Guidelines § 3553(a) factors, citing Rodriguez’s aggressive history and alcohol-related offenses.
- On appeal Rodriguez argued (1) the Texas stalking conviction is not a COV and the 16-level enhancement was erroneous, and (2) the district court relied on unreliable uncharged conduct in imposing a non-Guidelines sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a conviction under Tex. Penal Code § 42.072 (stalking) qualifies as a "crime of violence" under U.S.S.G. § 2L1.2 | Gov't: The stalking conviction supports a 16-level COV enhancement | Rodriguez: The stalking statute does not require use, attempted use, or threatened use of physical force, so it is not a COV | The Fifth Circuit held the stalking conviction (as limited by the indictment) is not a COV; the Guidelines enhancement was legally erroneous but the error was harmless because the district court would have imposed the same sentence on § 3553(a) grounds |
| Whether the district court improperly relied on unreliable uncharged conduct at sentencing | Rodriguez: The court relied on arrest reports and alleged uncharged acts (e.g., assaults, threats) in imposing a higher non-Guidelines sentence | Gov't: The district court relied primarily on permissible § 3553(a) factors and explicitly disclaimed using uncharged conduct as the basis for the sentence | The Fifth Circuit reviewed for plain error, found any consideration of arrests did not affect substantial rights because the court relied on legitimate factors and expressly disavowed sentencing based on uncharged conduct; no reversible error |
Key Cases Cited
- United States v. Mohr, 554 F.3d 604 (5th Cir. 2009) (interpreting criminal-history and offense-characterization issues under the Guidelines)
- United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc) (defining "use of force" element analysis and categorical approach)
- United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc) (stressing that non-enumerated offenses must have force as an element to qualify as force offenses)
- Taylor v. United States, 495 U.S. 575 (1990) (establishing the categorical approach for comparing statutory elements to generic offenses)
- United States v. Cruz-Rodriguez, 625 F.3d 274 (5th Cir. 2010) (holding a criminal-threat statute need not involve physical force and thus may not be a COV)
- United States v. Duhon, 541 F.3d 391 (5th Cir. 2008) (explaining harmlessness when district court states it would impose the same sentence absent Guidelines error)