590 F. App'x 345
5th Cir.2014Background
- Defendant Luis Aldolfo Mazarego-Salazar pleaded guilty to illegal reentry after deportation and was sentenced to 70 months.
- The PSR applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a 2005 New York second-degree assault conviction, yielding an adjusted offense level of 22 after acceptance credit.
- The Government introduced a two-page court form (unsigned certification) showing a guilty plea to count two (N.Y. Penal § 120.05(2)); defendant contested its sufficiency under Shepard.
- The PSR also assigned 11 criminal-history points (Category V), including two points for separate fare-evasion convictions; defendant did not object at sentencing to those points.
- The district court overruled the Shepard objection, imposed the 16-level enhancement, accepted the PSR range, granted full acceptance credit, and sentenced to 70 months; defendant appealed.
- On appeal the Fifth Circuit affirmed the § 2L1.2 enhancement but found plain error in including the two fare-evasion convictions in the criminal-history calculation, vacated that portion of the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2005 NY assault conviction qualifies as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) | Government: Shepard-approved records show conviction under § 120.05(2), which is a categorical crime of violence | Mazarego-Salazar: the proffered clerical court form is uncertified and lacks Shepard indicia of reliability | Affirmed: court may use the form to prove existence of the conviction; defendant offered no contrary evidence, and Neri-Hernandes treats § 120.05(2) as a crime of violence |
| Standard of review for sentence enhancements based on prior convictions | N/A | N/A | De novo review of legal question; district court findings of fact reviewed for clear error; government bears preponderance burden |
| Whether two fare-evasion convictions should count in criminal-history under U.S.S.G. § 4A1.2(c)(1) | N/A | Mazarego-Salazar (on appeal): fare-evasion is a petty offense and should be excluded per Sanders and Florez-Florez | Vacated: plain error to include them; omission would lower CH category from V to IV and affect Guidelines range, so remand for resentencing |
| Whether the sentencing error was prejudicial under plain-error review | Government: sentencing statement considered § 3553(a) and would remain same | Mazarego-Salazar: guideline reduction would likely produce a lower sentence | Vacated as to CH calculation: district court emphasized guideline range and structured sentence at low end of (incorrect) range, creating reasonable probability of different outcome |
Key Cases Cited
- Shepard v. United States, 544 U.S. 13 (2005) (limits what documents courts may consider to determine facts underlying a prior plea)
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness review of sentences and requirement to check for significant procedural error)
- Neri-Hernandes v. United States, 504 F.3d 587 (5th Cir.) (treats N.Y. Penal § 120.05(2) as a crime of violence and permits certain NY records to establish conviction)
- Sanders v. United States, 205 F.3d 549 (2d Cir. 2000) (fare-evasion treated as petty offense excluded from criminal-history under § 4A1.2(c)(1))
- United States v. Pratt, 728 F.3d 463 (5th Cir.) (vacatur on plain-error review where district court relied on incorrect Guidelines range)
- Moreno-Florean v. United States, 542 F.3d 445 (5th Cir.) (use of abstracts/certificates of disposition to establish existence of prior convictions)