United States v. Martinez-Vega
471 F.3d 559
5th Cir.
2006
Check Treatment
Docket

*1 intent, to business.” The district effect the district court’s go back into this prevent pronouncement to Míreles from condition the oral sought court thus must driving encompass off-highway commercial truck be read to this again using his Therefore, drug trafficking. driving as well. activities as cover for we find that pronouncements the oral and written Nothing suggests in the record are regulating respect. at all concerned with also reconcilable this non-commercial activities. Mireles’s

Therefore, driving” “truck the term V. only commercial judgment written covers reasons, For the foregoing we AFFIRM. then, activity. judgment, The written does pronouncement not conflict with the oral regard. condition in this special although next

Míreles pronounce- in the oral

special condition only Míreles is a “truck applies

ment when driver,” the

driver” or a “wrecker condi- judgment applies tion in written when Mí- America, UNITED STATES passenger.” a “driver or a reles is either Plaintiff-Appellee, is not Although “passenger” the term present pronouncement, in the oral we find discrepancy merely ambigui- MARTINEZ-VEGA, that this is Sergio Guadalupe ty by looking that can resolved to the Defendant-Appellant. be of the district court. As noted intent No. 05-41498. above, it is clear from the record of the Appeals, oral that the district court United Court of pronouncement States Fifth sought prevent trafficking Míreles from Circuit. truck

drugs engaged while commercial Nov. driving It not uncommon in activities. driving

commercial truck for two drivers Therefore, each other. spell be used light purpose,

when read in of its oral

special pronounce- condition applies

ment also to Míreles both as a passenger.

driver and as a

Finally, Míreles contends that the writ-

ten condi- special broadens the supervised

tion for release because it does reporting

not restrict and consent to requirements highway

search truck Although pronouncement

driving. the oral

refers to it as the “commercial activities on condition,

highways” language should narrowly be construed as Míreles

suggests. By necessity, engaged a truck activity

in commercial must also travel on highway. give

other streets to reach a To *2 (argued),

Paula Offenhauser Camille Turner, Attys., Lee Asst. U.S. James Houston, TX, for U.S.

Marjorie Meyers, A. Fed. Pub. Def. Crooks, Timothy Asst. Fed. Pub. William Sokolow, Def., Molly E. H. Michael Odom Houston, TX, Martinez-Vega. (argued), for hearing, Appellant responded affirmatively “every- to the court’s thing in correct?” After a BARKSDALE, acceptance responsibility, reduction for BENAVIDES Before OWEN, Appellant’s sentencing range 37 to Judges. *3 Ap- months. The district court sentenced BENAVIDES, Judge: Circuit to pellant appeals. 37 months. He now this direct crimi- principal issue on appeal, For the first time on Ap nal is whether the district court appeal pellant challenges the 16-level enhance assessing in a 16-level en- plainly erred ment, arguing that the district court rec to sentence based Appellant’s hancement does prior ord not establish his sexual prior that Appellant’s on the determination conviction a assault crime of violence a conviction for sexual assault was state 2L1.2(b)(l)(A)(ii). § Before an ap sentencing crime of violence under the pellate court can correct an error not error, Finding plain no we guidelines. (1) (2) below, error; raised there must be AFFIRM. (3) plain; that is and that affects substan Olano, rights. tial United States v. 507 Martinez^ Appellant Sergio Guadalupe 725, 732-34, 1770, 1777-78, 113 S.Ct. in guilty illegal reentry to Vega pleaded (1993). If pre 123 L.Ed.2d 508 all three Appellant’s § violation of 8 U.S.C. met, may court requisites are the exercise eight. base offense level was Pursuant error, discretion to correct a forfeited its 2L1.2(b)(l)(A)(ii), § the district U.S.S.G. only seriously if the error affects the by court increased his offense level 16 fairness, integrity, public reputation on a conviction for a levels based judicial proceedings. the 507 U.S. at 735- qualifies violence.” An offense “crime of Further, 37, 113 S.Ct. at 1778-79. the if it includes an as a crime violence Supreme Court has made clear or constitutes an enumer element of force plain determine whether the error was at 2L1.2, § comment. ated offense. U.S.S.G. at the time of consideration —not (n.l(B)(iii)). among 2L1.2 includes Section the of trial. Johnson v. time See United the enumerated offenses the crimes States, 1544, 1549, 461, 117 520 U.S. S.Ct. “statutory rape” and “sexual abuse of a (1997) (holding that however, guidelines, Id. The “do minor.” change in the law made the intervening not the enumerated of vio define crimes plain appeal). error on lence,” therefore, court adopts “this approach,’ defining ‘common sense each Although parties agree by ‘generic, contemporary crime its mean assault conviction was Appellant’s sexual ” Sanchez-Ruedas, ing.’ United States 22.011, § in violation of Tex. Penal Code omitted), (5th Cir.) (citations 409, 452 412 they agree particular as to the do — U.S. —, 127 S.Ct. rt. ce determining subsection of the statute. (2006). 315, 166 L.Ed.2d has which subsection of statute been (PSR) violated, presentence report stated courts are limited “ that, 1994, ‘charging doc pleaded guilty following had records: assault, ument, plea agreement, transcript a lesser included of- written “sexual Hidalgo County, plea colloquy, any explicit Texas. The factu fense” judge trial to which the finding PSR further stated that the conviction al ” stemmed from sexual of his four- defendant assented.’ abuse Gonzalez-Chavez, 334, year-old daughter. sentencing At 432 F.3d 337-38 Shepard v. United (5th Cir.2005) guilty charge. to that pellant plead did not (quoting States, 1254, Instead, judgment provides the state 544 U.S. (2005)). Here, to “the Appellant pleaded guilty 161 L.Ed.2d lesser (em- reliance on the PSR to court’s sole district contained the Indictment.” added). conviction was a that the determine phasis judgment specifically clear and ob constituted crime of violence referred to the conviction as second Supreme Court and vious error under degree previ- offense of sexual assault. As States v. precedent. United Fifth stated, ously although parties agree Ochoa-Cruz, 442 F.3d (5th Cir. Appellant pleaded guilty that' sexual 2006). forth, However, Texas Penal assault violation of Code plain there is error is whether 22.011, they dispute which subsection. *4 consideration. at the time of Relying judg- on the indictment and that the record is Appellant contends ment, Appellant asserts government prior that to demonstrate his insufficient in convicted of sexual assault of a child assault constituted a conviction for sexual 22.011(a)(2). § Penal violation Tex. Code § 2L1.2.1 of violence” under Sub- “crime a previously, As set forth sexual abuse of filing Appellant’s opening sequent to the minor is one of the enumerated offenses brief, granted government’s this Court § under 2L1.2 that constitute a crime of appeal record on supplement motion held that: violence. This Court has judgment per- and the the indictment with Gratifying arousing one’s sexual de- conviction for Appellant’s prior taining pres- sires in the actual or constructive charge in Texas.2 sexual assault ence of a child is sexual abuse of a read as follows: the indictment with a Taking minor. indecent liberties MARTINEZ hereinaf- SERGIO VEGA gratify sexual desire con- child one’s Defendant, on or styled about ter stitutes “sexual abuse of a minor” be- A.D., 1993, and day of June before 23rd taking cause it involves undue or unfair indictment, in of this presentment advantage causing of the minor and such County, did then and Hidalgo psychological physical— minor not—if there, intentionally cause harm. the mouth sexual his Izaguirre-Flores, United States 405 Martinez, the a Crystal of Jasmin omitted), Cir.) (footnotes (5th 275-76 years 17 younger child than — —, rt. defendant, and the not the ce (2005). gratifying If than then and there victim was presence sexual desires while in the one’s age. of a minor constitutes sexual abuse of a specifically provided that The indictment minor, then sexual assault of child cer degree aggravated first charge a minor. tainly constitutes sexual abuse of Although the indictment sexual assault. Nonetheless, on United States v. statute, relying it provide a cite for the did Turner, 22.021(a)(2)(B). Ap- Appellant argues § that this Court Texas Penal Code brief, Rayo-Valdez, 302 F.3d Appellant’s opening that 1. In force, (5th Cir.2002). use of his conviction did not involve and, therefore, the enhancement constituted However, plain error. this Court has held Appellant opposed supplementation of the 2. offense does not that even if an enumerated judg- record with the indictment but not the force, it is nonetheless a include an element of ment. because it is enumerated. crime violence (3) “everything and that rely the state court indictment may not consti- forth, whether the offense to determine correct.” As crime of violence. 349 F.3d 833 tuted a provided the victim of PSR (5th Cir.2003). ques- Turner involved the prior conviction for sexual assault was his conviction consti- tion of whether four-year-old daughter. A “district court under a different tuted a crime of violence can use all facts admitted the defendant 2K2.1(a)(4)(A). § at Id. guideline, determining whether the convic case, found the district court erred qualifies tion as an enumerated offense on the indictment because the 2L1.2.” United States v. Mendo pleaded guilty to a lesser includ- (5th za-Sanchez, 456 F.3d Cir. not reindicted on that ed offense and was 2006). recognize Appellant’s ad We at the instant count. Id. 836. Unlike mission of the correctness of the contents however, case, not limited to Turner was of the PSR was a rather broad admission.3 Here, plain error review. Nonetheless, that, we are confident in view pleaded guilty to provides admission, of this combined with the state in the Indict- charge “the lesser contained judgment’s reference to “the lesser added). in- (emphasis ment.” The lesser included contained in the Indict Appellant’s indictment cluded *5 ment,” which was sexual assault of a mi age of a child under the was sexual assault nor, Appellant has failed to demonstrate that Appellant argues the of seventeen. that the error was clear or obvious. See language likely boiler above-quoted Fernandez-Cusco, judgment and that the in Turner plate (5th Cir.) (holding that “[i]n language. the same may have contained record, including of light sup the this as argument Appellant That offers no succor. appeal, on the plemented crime-of-violence appeal, this he has the burden of dem- On enhancement constitutes neither ‘clear’ nor onstrating plain error. —U.S. error”), ‘obvious’ cert. — , 166 L.Ed.2d 158 Moreover, sentencing at his (2006). Thus, he has failed to show that interpreter, hearing, Appellant, through plain error is at the time of (1) the judge indicated to the that: he had (2) claim him no consideration.4 This affords attorney; reviewed the PSR with his questions regarding report; he had no the relief.5 clear, remaining prongs. Additionally, a PSR to determine reach the

3. To be reliance on conviction constitutes a crime Appellant we failed because conclude has error. of violence Ochoa-Cruz, is clear and obvious test, satisfy plain not error need Here, 442 F.3d at 867. howev- Appellant's of whether ad- reach er, relying Appellant's we are admission of invited error. mission constituted happen facts that to be in the PSR —not the concurring opin- PSR in and of itself. In her 5.Finally, "felony” Appellant that the ion, Martinez-Vega's Judge Owen construes “aggravated felony” provisions of 8 and correctly to be that the PSR admission (2) 1326(b)(1) are unconstitu- U.S.C. forth the contents of the Sheriff’s Office of- light Jersey, Apprendi v. New tional in of report. pre- fense We do not believe we are 120 S.Ct. to bol- cluded from on the admission (2000). Appellant preserved this claim ster our conclusion that has failed proving plain Although Ap- objecting to shoulder his burden of error. district court. Mendoza-Sanchez, issue, See 456 F.3d at 483. pellant that it has briefed the he admits solely it is foreclosed in this Court and raises light satisfy 4. the first two of his failure to possible Supreme Court review. for test, prongs plain of the error we need not [JCM], mouth of is AF- judgment court’s The district a child than 17 FIRMED. of the defen- age of and not the concurring: OWEN, Judge, further. need look no dant.”2 We opinion with the in the court’s I concur Martinez-Vega’s admission Reliance on on Martinez- exception of its reliance presentence regarding the content of the “everything in the Vega’s admission (PSR) problematic for a number report correct.” report [presentence] [was] reasons, of is that the PSR one which Hidalgo Coun- simply summarizes what us is whether Mar- The issue before report Office offense ty, convicted Texas Sheriffs tinez-Vega had been convic- in connection with said assaulting a child Martinez-Vega agreed that tion.3 When seventeen. state-court cor- “everything recites that Martinez- conviction at issue rect,” only that the accu- he admitted PSR to the LESSER Vega “pled GUILTY rately the sheriffs recounted what contained in the Indictment.”1 actually per- report, office indictment stated lesser there, all conduct described any inten- formed Martinez-Vega “did then and report. his sexual in that tionally cause take her original. She demanded that the defendant Emphasis check-up. hospital for a and the child to the hesitated, eventually jury's grand indictment stated in full: 2. The hospital. agreed to take them to the At the JURY, County GRAND for the THE hospital, child admitted to such and selected, Hidalgo, duly im- State of days that the same had also occurred 15 sworn, organized paneled, charged and prior. questioned the defendant An officer *6 July A.D.1993 of the 275th such at the Term was intoxicated. The and observed that he County, for said Judicial District Court allegation and stated defendant denied the upon present in and to said their oaths just being Velasquez spiteful. that Ms. was VEGA court at said term that SERGIO pub- The officer arrested the defendant for Defendant, styled MARTINEZ hereinafter that the de- lic intoxication after he noted A.D., day June on or about the 23rd of having difficulty standing. La- fendant presentment of this and before station, again police ter at the the defendant indictment, Hidalgo County, did allegation, but stated that he denied the there, intentionally then and willing plead a reduced would be cause his sexual charge because it would mean less time victim, [JCM], younger a child mouth of to serve. The officer that he would have years age and not the of than 17 why plead asked the defendant he would defendant, the victim was then and guilty allegation. de- if he denied the younger years age. there than 14 upset and to an- fendant became refused questions. disposition swer further says, pertinent part: 3. The PSR public was undeter- intoxication According report from the mined. to the offense 23, 1993, Office, Velasquez Hidalgo County September Ms. sub- on June On Sheriff’s citing request up mitted a case dismissal woke her female mother, daugh- she did not want to traumatize her Velasquez, Rosa and told her that through questioning. ter continued the defendant was in her room and was further dismissed, Obviously, charges were not putting penis is noted in her mouth. It father, plead defendant was allowed to the victim's but that the defendant is guilty of sexual assault. with the to the lesser did not reside in the residence immediately The Indictment indicates that the child and mother. The mother charged aggravated got originally with sex- up the defendant about and confronted assault, degree felony. allegation, ual 1st the child’s which he denied. Martinez-Vega now admits that Even if daughter when sexually assaulted his

he old, he has not years four which

she was

done, admitting he is not the same as assaulting four-year-old

was convicted of seen, the record

child. As we have that was convicted of

conviction reflects than

sexually assaulting younger a child he was not convicted of

seventeen but assaulting a child than

sexually Martinez^-Vega’s

fourteen. Because offense, included

guilty plea to the lesser government required was never greater offense.

prove the certainly may district court consider by MartinezAVega that he

any admission sexually daughter assault his

did fact deciding old in

when she was four departure is warrant- upward

ed, cannot but such an admission be

basis for an enhancement under U.S.S.G. 2L1.2(b)(1)(A)(ii). SMITH, E. Petitioner-

Charles

Appellant, *7 QUARTERMAN, Director,

Nathaniel Department

Texas of Criminal Jus-

tice, Divi- Correctional Institutions

sion, Respondent-Appellee.

No. 05-70045. Appeals,

United States Court

Fifth Circuit.

Nov.