814 F.3d 757
5th Cir.2016Background
- Ortega-Calderon was indicted in March 2014 for unlawful presence after prior deportation, and pled guilty to the sole count.
- The PSR recommended a 12-level § 2L1.2(b)(1)(A)(ii) enhancement based on a 2003 California assault with a deadly weapon conviction.
- The probation office produced two documents—a Disposition of Arrest and Court Action and a docket sheet—indicating a 2003 conviction by a Juan Ortega Calderon who pleaded nolo contendere to Cal. Penal Code §245(a)(1).
- At sentencing, Ortega-Calderon objected to reliability but conceded the PSR’s information was accurate; the district court found the documents reliable by a preponderance of the evidence and imposed the enhancement.
- Ortega-Calderon appeals arguing the district court erred in relying on these documents; the court agrees to review the reliability determination for clear error and affirms the sentence.
- The court discusses standards of review and the distinction between proving the fact of a conviction versus proving its elements, ultimately upholding reliance on the documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for reliability determinations | Ortega-Calderon argues de novo review | Government argues clear-error review | Clear-error review is applied |
| Reliability of the docket sheet and Disposition documents to prove a prior conviction | Documents are insufficiently reliable | Documents provide sufficient indicia of reliability | Documents sufficiently reliable to support the conviction finding |
| Clerk-made state records vs broader reliability requirements | Limiting to clerk-made state records | Guidelines permit other indicia of reliability | No requirement to restrict to clerk-made records; reliability suffices |
Key Cases Cited
- Martinez-Cortez, 988 F.2d 1408 (5th Cir. 1993) (whether proof of a prior conviction satisfies Taylor protections (Taylor inquiry))
- Neri-Hernandes, 504 F.3d 587 (5th Cir. 2007) (reliability of records used to prove prior conviction; distinctions from Taylor)
- Zuniga-Chavez, 464 F.3d 1199 (10th Cir. 2006) (importance of reliability; case summaries as evidence of conviction)
- Taylor, 277 F.3d 721 (5th Cir. 2001) (reliability of PSR-based evidence; indicia of reliability standard)
- Mazarego-Salazar, 590 F. App’x 345 (5th Cir. 2014) (unpublished; affirmed sentencing enhancement based on clerical-type documents)
- Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015) (supports reliance on documents with indicia of reliability)