United States v. Diego Duque-Hernandez
2013 U.S. App. LEXIS 4491
| 5th Cir. | 2013Background
- Duque-Hernandez pled guilty to illegal reentry under 8 U.S.C. §1326(a),(b) and was sentenced to 51 months’ imprisonment and 3 years’ supervised release.
- He challenges a 12-level adjustment pursuant to U.S.S.G. §2L1.2(b)(1)(B) based on a prior Utah drug-trafficking conviction, §58-37-8(1)(a)(ii).
- The prior offense involved offering to sell cocaine to an undercover officer, per the probable-cause statement attached to the charging document.
- The PSR and district court applied the adjustment after the 2009 amendment adding offers of sale to §2L1.2(b)(1)(B).
- Duque-Hernandez did not object at sentencing; the appeal proceeds under plain-error review.
- Court affirms the sentence, finding any error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings; decisions rely on review of the probable-cause statement and defendant’s opportunities to object.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the §2L1.2(b)(1)(B) adjustment based on the Utah conviction was proper | Duque-Hernandez argues the Utah statute may cover conduct outside drug trafficking and the probable-cause statement is not Shepard-approved | Duque-Hernandez’s position is that the adjustment was properly applied based on the prior conviction | Affirmed; no plain-error requiring reversal; adjustment sustained. |
| Whether the district court’s reliance on the probable-cause statement to support the adjustment was proper under plain-error review | Statement may not be used to support the drug-trafficking adjustment | Statement can be reviewed to assess the adjustment’s impact on proceedings | Affirmed; potential error deemed not to seriously affect fairness, etc. |
Key Cases Cited
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (plain-error review of sentencing enhancements under §2L1.2)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard and correction discretion)
- United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc; plain-error jurisprudence)
- United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) (fact review beyond plea admissions for factual support)
- United States v. Ellis, 564 F.3d 370 (5th Cir. 2009) (presence of limited review of sentencing adjustments)
- United States v. Kirksey, 138 F.3d 120 (4th Cir. 1998) (affidavits of probable cause in sentencing determinations)