UNITED STATES of America, Plaintiff-Appellee v. Heliodoro Hernandez CABRERA, Defendant-Appellant.
No. 10-40338.
United States Court of Appeals, Fifth Circuit.
June 11, 2012.
204-209
Rosa Alexander Eliades, Eliades Law, P.L.L.C., Carmen Roe, Esq., Houston, TX, for Defendants-Appellants.
Before JONES, Chief Judge, WIENER and GRAVES, Circuit Judges.
PER CURIAM:**
Defendants-Appellants David Vasser and Shirley Adger were among those charged in a 12-count grand jury indictment that resulted from a large and lengthy mortgage fraud operation. Adger was charged with one count of conspiring to commit mail and wire fraud and a second count of substantive wire fraud. Vasser was charged with five counts comprising conspiracy to commit mail and wire fraud, conspiracy to commit money laundering, and engaging in monetary transactions involving criminally derived property. Both Adger and Vasser were convicted by a jury on all counts, and both raise numerous claims of error on appeal.
Adger contends that the district court erred in refusing her requested jury instructions on good faith and intent, and complains of the sufficiency of the evidence to convict her. She also claims that she is harmed by a large number of omissions, as unintelligible, from the record of the trial proceedings. Vasser asserts that the trial court abused its discretion in admitting extrinsic evidence, under Rule 404(b), of similar fraudulent acts he committed shortly before the beginning of the instant conspiracy, and of plain error in giving a Rule 404(b) limiting instruction only at the conclusion of the trial. The defendants also assert that the district court erred in allowing marker tags to go to the jury on various documentary exhibits and in admitting broker files from the offices of Motown Mortgage Group into evidence.
A careful review of the record in this case and of the briefs of the parties, as well as oral argument by able counsel for both defendants, coupled with our consideration of the facts and the law as revealed thereby and as set forth in the appellate briefs of the parties, satisfies us that the evidence was sufficient to support the convictions of both defendants on all counts and that each error claimed by the defendants either did not constitute reversible error or, at most, constituted harmless error. Consequently, the convictions of both Defendants-Appellants should be, and hereby are,
AFFIRMED.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Margaret
Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PER CURIAM:**
Heliodoro Hernandez Cabrera (“Hernandez“) appeals his sentence entered upon a plea of guilty to illegal reentry after deportation. His sole substantive appellate issue is whether his prior Texas conviction for “attempted deadly conduct” constitutes a “crime of violence” for purposes of a 16-level enhancement of his Guidelines sentence calculation.1 See
I. Facts and Standard of Review
Pertinent to this appeal, Hernandez pled guilty to illegal reentry after deportation. The presentence report (“PSR“) enhanced the base offense level of eight by 16 levels, determining that Hernandez‘s prior conviction was for a “crime of violence.” The PSR calculated an advisory Guideline
Because Hernandez objected to the crime-of-violence enhancement, we apply de novo review. United States v. Bonilla, 524 F.3d 647, 651 (5th Cir.2008); United States v. Dominguez, 479 F.3d 345, 347 (5th Cir.2007). We address here only whether Hernandez‘s Texas conviction for “attempted deadly conduct” implicates the residual “use of force” prong of
II. Discussion
Hernandez‘s state-court indictment (“Indictment“) charged him with one count of aggravated assault with a deadly weapon and one count of deadly conduct. See
Under our precedents, section 22.05 of the Texas Penal Code is not, in its entirety, a “crime of violence.” Compare United States v. Hernandez-Rodriguez, 467 F.3d 492, 495 (5th Cir.2006) (concluding that
Precedent circumscribes the type of evidence we can use in the narrowing inquiry.
This case thus turns on whether the record contains state-court documents that are susceptible to “narrowing” under Taylor-Shepard and, if so, whether the documents prove that Hernandez was convicted of attempted deadly conduct under subsection (b)(1). The parties agree that “Shepard-approved” documents exist, but they draw different conclusions from those documents.
The Government largely relies on the Indictment and on language from the first paragraph of a document entitled “Judgment and Sentence of the Court” (“Judgment“). The second count of the Indictment charged Hernandez with firing a weapon at or in the direction of another individual, conduct clearly encompassed by subsection (b)(1). The Judgment notes that the State waived the aggravated assault charge and “proceed[ed] with the 2nd count of the Indictment” and that Hernandez “entere[d] a plea of GUILTY to the charge in the indictment relied upon by the State” (emphasis removed). The Government contends that this shows that Hernandez admitted to attempting to fire a weapon at or in the direction of a person. Because the Guidelines treat attempts to commit crimes of violence the same as completed crimes, the Government argues that Hernandez was convicted of a crime of violence. See
Hernandez emphasizes two different state-court documents: the “Plea of Guilty, Admonishments, Voluntary Statements, Waivers, Stipulation & Judicial Confession” (“Judicial Confession“), and the cover page to the Judgment in the minute book of the court summarizing the terms of the Judgment and entitled “Judgment on Plea of Guilty Before the Court” (“Record of Judgment“). The Judicial Confession notes that the State originally charged Hernandez with deadly conduct, but “move[d] to reduce the charged offense to: attempted deadly conduct.” Hernandez “stipulat[ed]” and “confess[ed]” in the same document that he “committed and [was] guilty of the lesser included offense of: attempted deadly conduct.” The Judicial Confession neither elaborates further on the factual basis for Hernandez‘s plea nor identifies the subsection of the deadly conduct statute that Hernandez attempted to violate. Consonant with the Judicial Confession, the Record of Judgment also specifies only that Hernandez was convicted of attempted deadly conduct.
Our case law is clear. When a charging instrument “charges a crime of which [the defendant] was not convicted, it cannot be used to ‘pare down the statute of conviction to determine under which subsection [he] pleaded guilty.‘” Bonilla, 524 F.3d at 652 (quoting United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir.2007)); see also United States v. Turner, 349 F.3d 833, 836 (5th Cir.2003) (“An allegation in an indictment alone does not [establish the nature of the underlying conduct]. ‘Thus, a district court may not rely on a charging document without first establishing that
It makes no difference that Hernandez was convicted of a lesser included offense. Unless a defendant is reindicted on the pled-to crime or the original indictment specifies the relevant lesser included offense, courts may not rely on the indictment‘s factual allegations. See, e.g., Bonilla, 524 F.3d at 653 n. 4 (“In this case, we have a certificate of disposition that does not refer back to a lesser offense in the original indictment.“). Because the Indictment does not list attempted deadly conduct,4 we cannot use it to establish the nature of Hernandez‘s conviction. See Turner, 349 F.3d at 836; see also Neri-Hernandes, 504 F.3d at 589-90 (concluding that the district court erred in relying on an indictment charging the defendant with “assault in the second degree, subsection 2” under New York law—a crime of violence—when the defendant pled guilty to “attempted assault in the second degree” (citation omitted)).
The Government‘s position, then, necessarily depends on the Judgment, the Record of Judgment, or the Judicial Confession. None of these documents, however, identify the subsection of conviction or allege facts that would support a conviction under subsection (b)(1). The Judicial Confession and Record of Judgment provide only that Hernandez was convicted of attempted deadly conduct.
The Government again points to the Judgment and relies in part on United States v. Martinez-Vega, 471 F.3d 559 (5th Cir.2006). The state-court judgment there specified that the defendant, originally charged with “first degree aggravated sexual assault,” id. at 562, pled guilty to “sexual assault.” Id. at 561 (citing
We read the Judgment differently than the Government. Although initially referring to the Indictment, the Judgment later clarifies—without mentioning the Indictment—that the court “called” the case again and adjudged Hernandez guilty of attempted deadly conduct. The State may have “proceeded” with and “relied upon” the deadly conduct count, but Hernandez ultimately pled guilty to an offense that was not charged or otherwise enumerated in the Indictment. Other than the Judgment‘s initial reference to the Indictment‘s second count, it nowhere alleges facts that permit “narrowing” Hernandez‘s attempted deadly conduct conviction to a specific subsection.5
Moreover, we rejected a similar argument in Bonilla, which distinguished Martinez-Vega by noting that the lesser included offense there “was made clear from the judgment, and was found by the court as actually being charged in the original indictment.” Bonilla, 524 F.3d at 653 n. 4 (emphasis added). The Judgment language here does not “make clear” that it is incorporating parts of the Indictment, which made no mention of attempted deadly conduct. The Bonilla court also distinguished Martinez-Vega as a plain-error case. Id. Under the de novo standard of review appropriate here, we are bound to follow Bonilla.6 Cf. Martinez-Vega, 471 F.3d at 563 (distinguishing Turner, which held that the district court “erred in relying on the indictment because the defendant pleaded guilty to a lesser included offense and was not reindicted on that count,” as a case that “was not limited to plain error review” (citing 349 F.3d at 835-36)).
In line with the Record of Judgment and Judicial Confession, furthermore, the Judgment provides that the state court found that Hernandez confessed and pled guilty to committing “attempted deadly conduct.” Notably, “‘written plea agreement[s]” and “explicit factual finding[s] by the trial judge to which the defendant assented” may serve as Shepard-approved evidence of the conduct underlying a defendant‘s conviction. Bonilla, 524 F.3d at 652 (citation omitted). Here, those documents do not prove a “crime of violence.” Accordingly, the district court erred in applying the crime-of-violence enhancement. The Government does not contend that this error was harmless, and—given the 35-month discrepancy between Hernandez‘s sentence and the top of the likely Guidelines range—it was not harmless.
The Government concedes Hernandez‘s final argument—that his judgment should reflect that he was sentenced under
VACATED and REMANDED, with the mandate to issue forthwith. We direct defense counsel to bring this case to the district court‘s attention immediately so that resentencing can occur expeditiously.