857 F.3d 668
5th Cir.2017Background
- Enrique-Ascencio pleaded guilty (Nov. 24, 2015) to illegal reentry after removal (8 U.S.C. § 1326) and faced a PSR recommendation of a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on a 2006 California felony conviction for possession for sale of cocaine.
- The PSR treated his 2006 sentencing history as: 120 days in county jail (to be served via a county work-release program per plea paperwork), followed by 36 months’ probation; after a 2008 probation revocation he received an additional 365 days in jail, yielding a cumulative 485 days.
- Enrique-Ascencio objected: (1) time served via work release is not a "sentence of imprisonment" for § 2L1.2 purposes, so only 365 days should count (12‑level enhancement); and (2) the government failed to produce a certified judgment establishing the prior sentence.
- The district court overruled objections, adopted the PSR, applied the 16‑level enhancement, and sentenced him within the Guidelines range; Enrique-Ascencio appealed.
- After sentencing a Guidelines amendment (effective Nov. 1, 2016) would have reduced his offense level; Enrique-Ascencio requested remand to allow resentencing under the post‑sentencing amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether county work‑release under Cal. Penal Code § 4024.2 qualifies as a "sentence of imprisonment" for § 2L1.2(b)(1)(A)(i) | Work release is not actual confinement; thus the 120‑day work‑release period is not a sentence of imprisonment and should not count toward the >13‑month threshold | The sentence pronounced was 120 days in jail; participation in work release is discretionary with the sheriff, so the pronounced jail term is a sentence of imprisonment regardless of how served | The 120‑day jail term (even if served via § 4024.2 work release) is a sentence of imprisonment; cumulative 485 days exceeded 13 months, so 16‑level enhancement applies |
| Whether the documents in the record (plea form, complaint, minute printout) suffice to prove the prior sentence when no certified judgment was produced | The PSR’s plea document and other non‑Shepard materials are unreliable; without a certified judgment the government failed to meet its preponderance burden | Defendant never disputed the existence of the conviction or the 120‑day sentence; given the record as a whole these facts are plausible admissions and any error in relying on the documents was harmless | The documents would not meet the Taylor/Shepard reliability standard if contested, but Enrique‑Ascencio never denied the conviction or 120‑day sentence; any error was harmless and did not require remand |
| Whether the case should be remanded for resentencing under a post‑sentencing, non‑retroactive Guidelines amendment | Remand should be granted so the district court can consider the amendment that would reduce offense level and sentence | The amendment is non‑retroactive; failure to consider a post‑sentencing non‑retroactive amendment is not plain error | Denied. Under binding precedent (Garcia‑Carrillo) failing to apply a non‑retroactive post‑sentencing amendment is not plain error; Molina‑Martinez does not require a different result |
Key Cases Cited
- United States v. Martinez-Lugo, 782 F.3d 198 (5th Cir. 2015) (standard of review for preserved Guidelines objections)
- United States v. Schomburg, 929 F.2d 505 (9th Cir. 1991) (California work‑release treated as sentence of imprisonment because sheriff’s discretion preserves original custodial sentence)
- United States v. Valdez-Valdez, 143 F.3d 196 (5th Cir. 1998) (citing Schomburg as persuasive authority)
- United States v. Brooks, 166 F.3d 723 (5th Cir. 1999) (boot camp counted as imprisonment; cited Schomburg)
- United States v. Gordon, 346 F.3d 135 (5th Cir. 2003) (home detention is not a sentence of imprisonment where law‑enforcement discretion to convert is absent)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to predicate‑offense analysis)
- Shepard v. United States, 544 U.S. 13 (2005) (documents proper for modified categorical approach limited to certain conclusive records)
- United States v. Rodriguez, 630 F.3d 377 (5th Cir. 2011) (government must prove facts supporting enhancements by a preponderance)
- United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005) (PSR and similar documents alone are not Shepard‑approved)
- United States v. Garcia-Carrillo, 749 F.3d 376 (5th Cir. 2014) (declining to treat a district court’s failure to apply a non‑retroactive post‑sentencing amendment as plain error)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (clarifies plain‑error framework for guideline‑range miscalculations but does not affect non‑retroactive amendment issue)