USA v. Arviso-Mata

Filing 920060307

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 05-40167 Summary Calendar UNITED STATES OF AMERICA Plaintiff-Appellee, versus JUAN ARVISO-MATA, also known as Juan Jose Arviso-Mata Defendant-Appellant. Appeal from the United States District Court For the Southern District of Texas Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges. HIGGINBOTHAM, Circuit Judge: Juan Arviso-Mata appeals the 70-month sentence imposed following his guilty-plea conviction of illegally re-entering the United States after deportation in violation of 8 U.S.C. § 1326. Arviso presents three issues: (1) whether the district court erred in calculating Arviso's criminal history score; (2) whether the district court's application of the mandatory Sentencing Guidelines was harmless error; and (3) whether 8 U.S.C. § 1325(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey.1 We affirm Arviso's conviction, vacate Arviso's sentence, and remand for resentencing. I Without the benefit of a plea agreement, Arviso pleaded guilty to illegally re-entering the United States after being previously March 7, 2006

1

530 U.S. 466 (2000).

deported.

The presentence report (PSR) established Arviso's base He received a 16-level enhancement because he

offense level at 8.

was deported previously following a conviction for transporting undocumented aliens within the United States. He received a threelevel reduction for acceptance of responsibility. months imprisonment. Arviso filed written objections to the PSR. He objected to He the 16-level enhancement on the basis of Blakely v. Washington. he conceded that this argument was foreclosed. court asked Arviso's counsel for any His total offense level was 21, with a resulting guidelines range of 70 to 87

also objected to the constitutionality of 8 U.S.C. § 1326(b), but At sentencing, the to the PSR. objections

Counsel stated: "Your honor, we filed a Blakely objection to the 16 level enhancement for his August, 1994 conviction for purposes of further appellate review. . . . Outside of that, Your Honor, we have no objections to the PSR. years ago. end." The [August 1994] conviction was 10 We'd ask the Court to consider a sentence at the low

After overruling the single objection, the district court Arviso timely appealed. II We have jurisdiction

sentenced Arviso to 70 months imprisonment and three years of supervised release. under 28 U.S.C. § 1291. Arviso raises three issues on appeal. First, he contends that the district court erred in calculating Arviso's criminal history score. Second, he contends the district court's application of the mandatory Sentencing Guidelines was not harmless error. in light of Apprendi. A Admitting that the issue was not raised below, Arviso contends that the district court plainly erred in assessing two criminal history points for his 1993 misdemeanor conviction of illegal entry Third, he contends that 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional

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into the United States because the sentence was imposed more than ten years prior to the commission of the instant offense.2 forfeited, was also waived. We disagree. The government contends that this asserted error, in addition to being "Waiver and forfeiture are two different means by which a defendant may react to an error by the government or the district court in the proceedings in a case."3 although distinct. a known right.4 The doctrines are similar, Forfeiture is the failure to make the timely

assertion of a right; waiver is the intentional relinquishment of Forfeited errors are reviewed under the plain error standard; waived errors are entirely unreviewable.5 Waiver is the "`intentional relinquishment or abandonment of a known right.'"6 forego it. There is no evidence, here, that counsel knew of the sentencing guidelines issue and that he consciously chose to The government's only evidence of waiver is counsel's This statement, alone, is insufficient to establish The unpublished In both United statement that, other than the Blakely objection, he had no problem with the PSR. that Arviso's counsel abandoned a known right. opinions cited by the government are inapposite.

States v. Martinez and United States v. Molina, the defendant objected, in writing, to the presentence report, but subsequently affirmatively sentencing.
2

abandoned

the

objection

before

the

court

at

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We cannot say the same occurred here.

See U.S. SENTENCING GUIDELINES § 4A1.1(b). United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002). United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1993). United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995).

3

4

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United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). United States v. Martinez, 79 Fed. Appx. 12, 13 (5th Cir. 2003) (noting that the defendant filed written objections to the presentence report, but at the sentencing hearing, he "informed the district court that he was not pursuing the
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3

Turning

to

the

merits,

we

review

the

district

court's

application of the sentencing guidelines de novo.8

Because there

was no objection below, Arviso must establish that the district court plainly erred in application of the guidelines.9 The district court assessed Arviso two criminal history points for his 1993 conviction of illegal reentry. instant offense on August 3, 2003. According to the indictment for the instant offense, Arviso was arrested for the According to the PSR, Arviso Under § pled guilty to the prior offense on March 3, 1993.10

4A1.2(e), computation of criminal history points is determined by the length of the sentence and the date of the imposition or release of the sentence. of probation without imprisonment. Section 4A1.e(2) governs whether prior convictions count for criminal history purposes. Under § 4A1.2(e)(1), "[a]ny prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted." one year and one month. This provision is not applicable, as Arviso's prior conviction did not result in imprisonment exceeding Under § 4A1.2(e)(2), "[a]ny other prior Here, Arviso was sentenced to five years supervision. There was no term of

written objections to the presentence report, that the presentence report was correctly written in all respect, and that the district court could rely upon the presentence report in determining his sentence"); United States v. Molina, 82 Fed. Appx. 977, 979 (5th Cir. 2003) (noting that the defendant "withdrew her objections to the PSR at the sentencing hearing" and thus they were waived). United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005); United States v. Jefferson, 258 F.3d 405, 412 (5th Cir. 2001).
9 8

See, e.g., United States v. Garcia-Cantu, 302 F.3d 308, 310 (5th Cir.

2002). We have repeatedly held that the PSR "is considered reliable and may be considered as evidence by the district court when making sentencing determinations." United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004); United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999); United States v. Reyna, 130 F.3d 104, 112 (5th Cir. 1997).
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sentence that was imposed within ten years of the defendant's commencement of the instant offense is counted." This provision is not applicable, as the instant offense occurred on August 3, 2003 and the sentence for the prior offense was imposed on March 3, 1993, which is outside the ten-year period.11 Thus, we are left As with § 4A1.2(e)(3), which provides that "[a]ny other sentence not within the time periods specified above is not counted." Arviso's March 1993 conviction does not fall within the time periods specified in § 4A1.2(e)(1) or (2), it should not have counted. Our conclusion that the district court erred is not changed by the subsequent revocation of Arviso's probation on September 13, 1994. Following revocation, Arviso was sentenced to three months Section 4A1.2(k)(1) provides that "[in the case of imprisonment.

of a prior revocation of probation, . . . add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for [§ 4A1.1]." Section § 4A1.2(e). Here, the original term of imprisonment was zero explains how the new term of months; the additional term was three months. 4A1.2(k)(2)(B) imprisonment affects the counting of criminal history points under If the total term of imprisonment exceeds one year and This provision is inapplicable, was only three months. one month, we are instructed to use "the date of last release from incarceration on such sentence." as Arviso's new term of imprisonment

Ignoring a provision regarding minors, in all other cases "the date of the original sentence" is used. which, as discussed previously, Here, that is March 3, 1993, is outside the window for The district court

consideration under § 4A1.2(e) and § 4A1.1(b).

See United States v. Arnold, 213 F.3d 894, 895-96 (5th Cir. 2000) (in calculating criminal history score under § 4A1.2(e), sentence imposed when defendant found guilty and given suspended sentence).

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plainly erred in considering Arviso's March 1993 conviction for purposes of enhancing his criminal history score. B Second, Arviso contends the district court erred by applying the mandatory sentencing guidelines, in violation of United States v. Booker.12 Technically, the erroneous application of the guidelines as mandatory is a "Fanfan error."13

The government

concedes that Arviso preserved his Fanfan error for appeal and that the issue is reviewed for harmless error.14 The government contends that the error is harmless because the court imposed a "reasonable" sentence at the law end of the guidelines range. However, the government cannot carry is arduous burden of showing that the district court would not have sentenced Arviso differently under an advisory guidelines system.15 C Finally, Arviso contends that 8 U.S.C. § 1326 is unconstitutional. As he concedes, this argument is foreclosed by

Almendarez-Torres v. United States, which this Court must follow "unless and until the Supreme Court itself determines to overrule it." III Accordingly, the judgment of conviction is AFFIRMED. resentencing. We VACATE Arviso's sentence and REMAND to the district court for

12

125 S.Ct. 738 (2005).

United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); see also Booker, 125 S.Ct. at 768-79.
14

13

See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).

15 See United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005); United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005) (Booker error).

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CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.

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