United States v. Jesus Cordova-Portillo
660 F. App'x 548
| 9th Cir. | 2016Background
- Defendant Jesus Ramon Cordova-Portillo appealed a sentence for illegal reentry after deportation under 8 U.S.C. §1326(a), enhanced by §1326(b)(1).
- Sentencing relied on a 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii) because a prior Arizona aggravated assault conviction was treated as a "crime of violence."
- Cordova-Portillo did not object to the Presentence Investigation Report (PSR) finding that his prior conviction qualified, so review on appeal is for plain error.
- The Arizona statute (A.R.S. §13-1203) is not categorically a crime of violence, but it is divisible; subsection (A)(2) requires placing a victim in reasonable apprehension of imminent physical injury and qualifies as a crime of violence.
- Shepard documents (charging papers, plea colloquy) were submitted on appeal and show the information/complaint and the plea hearing factual basis mirrored §13-1203(A)(2); Cordova-Portillo assented to the factual basis at the change-of-plea hearing.
- The Ninth Circuit held that, because the Shepard materials establish the conviction was under the qualifying subsection, any error in relying on the PSR was not prejudicial and affirmed the enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior Arizona aggravated assault conviction is a "crime of violence" for U.S.S.G. §2L1.2 enhancement | Government: conviction qualifies under the modified categorical approach as subsection (A)(2) (use/threatened use of force) | Cordova-Portillo: conviction not a crime of violence; PSR reliance was improper and plain error warrants relief | Affirmed: Shepard documents show plea admitted elements of §13-1203(A)(2); enhancement stands |
| Whether plain-error review is overcome when court relies on PSR absent objection | Government: even if plain error standard applies, error not prejudicial if record shows qualifying subsection | Cordova-Portillo: district court committed plain error by relying solely on PSR without state-court documents | Affirmed: appellate judicially-noticed Shepard documents cure any prejudice; outcome unaffected |
Key Cases Cited
- United States v. Rendon-Duarte, 490 F.3d 1142 (9th Cir. 2007) (plain-error review when defendant fails to object at sentencing)
- United States v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012) (requirements and application of plain-error prejudice showing)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (standard for plain-error affecting substantial rights)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limiting documents that may be consulted under the modified categorical approach)
- United States v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012) (A.R.S. §13-1203 not categorically a crime of violence)
- United States v. Cabrera-Perez, 751 F.3d 1000 (9th Cir. 2014) (conviction under §13-1203(A)(2) qualifies as a crime of violence)
- Alvarado v. Holder, 759 F.3d 1121 (9th Cir. 2014) (limits on using charging document language when plea agreement supersedes it)
- Parrilla v. Gonzales, 414 F.3d 1038 (9th Cir. 2005) (a factual basis may be considered if incorporated into or admitted with the plea)
- United States v. Marcia-Acosta, 780 F.3d 1244 (9th Cir. 2015) (reversal where plea colloquy did not show defendant’s assent to elements of a qualifying subsection)
- United States v. Sahagun-Gallegos, 782 F.3d 1094 (9th Cir. 2015) (reversal where factual basis did not admit requisite subsection elements and defendant did not assent)