USA v. Alfred Riascos-Granja

Filing 511138080

USA v. Alfred Riascos-Granja

Doc. 511138080

Case: 09-20637

Document: 00511138080

Page: 1

Date Filed: 06/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20637 S u m m a r y Calendar June 10, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. A L F R E D RIASCOS-GRANJA, also known as Alfred Riascos, also known as A l fr e d o Riascos, also known as Gerardo Bonano, also known as Gerardo Calzada B o n a n o , also known as Alfred Riascos Granja, D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CR-112-1

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* D e fe n d a n t-A p p e lla n t Alfred Riascos-Granja (Riascos) appeals from his c o n v ic t io n of being found in the United States illegally following deportation. R ia s c o s received a 16-level adjustment to his offense level pursuant to U .S .S .G . § 2L1.2(b)(1)(A)(ii). He contends that his Texas conviction of burglary o f a habitation was not a crime of violence because Texas's burglary statute may

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 09-20637

Document: 00511138080 Page: 2 No. 09-20637

Date Filed: 06/10/2010

b e violated by conduct falling outside the definition of generic burglary, as the d e fin it io n of "habitation" in Texas law includes structures other than " d w e llin g s ." He argues that his contention is not foreclosed by United States v. G a r c ia -M e n d e z , 420 F.3d 454 (5th Cir. 2006), because that case was decided u n d e r the plain error standard of review. He further argues that the district c o u r t erred by relying solely on the presentence report (PSR) in his case to d e t e r m in e whether he had been convicted of burglary of a habitation with intent t o commit theft. W e review the district court's interpretation or application of the G u id e lin e s de novo and its factual findings for clear error. United States v. C is n e r o s -G u tie r re z , 517 F.3d 751, 764 (5th Cir. 2008). The government bears the b u rd e n of proving by a preponderance of the relevant and reliable evidence the fa c ts supporting a sentencing adjustment, including prior convictions. United S ta t e s v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008). T h e Texas offense of burglary of a habitation with intent to commit theft is a crime of violence. Garcia-Mendez, 420 F.3d at 456-57. This court in GarciaM e n d e z rejected the argument that the relevant statute may be violated by c o n d u c t falling outside the definition of generic burglary because the definition o f "habitation" in Texas law includes structures other than dwellings. Id. The s t a n d a rd of review was irrelevant to the outcome in Garcia-Mendez. See id. R ia s c o s raises his contention that the district court erred by relying solely o n the PSR for the first time on appeal. We review his contention under the p la in error standard. See United States v. Rojas-Luna, 522 F.3d 502, 507 (5th C ir . 2008). To show plain error, the defendant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United S ta t e s , 129 S. Ct. 1423, 1429 (2009). If the defendant makes such a showing, we h a v e the discretion to correct the error but only if it "`seriously affect[s] the f a ir n e s s , integrity, or public reputation of judicial proceedings.'" Id. (quoting U n ite d States v. Olano, 507 U.S. 725, 736 (1993)). 2

Case: 09-20637

Document: 00511138080 Page: 3 No. 09-20637

Date Filed: 06/10/2010

" [A ] district court is not permitted to rely [solely] on a PSR's c h a r a c te r iz a tio n of a defendant's prior offense for enhancement purposes." U n ite d States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). A court

c o m m it s clear or obvious error when it relies entirely "on a PSR to establish s e n te n c in g facts that increase the penalty beyond the statutory maximum." U n ite d States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). "However, reliance o n a defendant's admission of facts that are contained in the PSR is permissible" o n plain error review. Id. Reliance on counsel's representations is permissible a s well. See United States v. Fambro, 526 F.3d 836, 849-50 (5th Cir. 2008). R ia s c o s acknowledged during his rearraignment that he had been c o n v i ct e d of burglary of a habitation with intent to commit theft. Moreover, c o u n s e l conceded that her objection to the use of a burglary conviction as a crime o f violence was foreclosed by this court's precedent. Trial counsel maintained h e r position at the sentencing hearing, which was held after the probation officer s e n t counsel the indictments and judgments relevant to the prior convictions u s e d to support the 16-level adjustment. R ia s c o s does not allege that trial counsel did not receive the copies or that t h e documents did not reflect convictions of burglary of a habitation with intent t o commit theft. Trial counsel made no affirmative representations about the d o c u m e n ts , but she could have objected to them if an objection was warranted. R ia s c o s 's acknowledgment at the plea hearing and counsel's concession th a t her objection was foreclosed are sufficient for us to find no reversible plain e r r o r as to the absence of documents regarding his state convictions from the r e c o r d . See Ramirez, 557 F.3d at 204; Fambro, 536 F.3d at 849-50. Moreover, b e ca u s e the documents had been disclosed and Riascos does not indicate that a n y objection was warranted, he has not shown that any error by the district c o u r t affected his substantial rights. See Puckett, 129 S. Ct. at 1429. A F F IR M E D .

3