USA v. Cesar Miller-Ortiz

Filing

UNPUBLISHED OPINION FILED. [09-50682 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 11/19/2010 for Appellant Cesar Sergio Miller-Ortiz [09-50682]

USA v. Cesar Miller-Ortize: 09-50682 Cas

Document: 00511278726 Page: 1 Date Filed: 10/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50682 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C E S A R SERGIO MILLER-ORTIZ, also known as Cesar Ortiz-Sonora, 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 Western District of Texas U S D C No. 3:09-CR-1073-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* C e s a r Sergio Miller-Ortiz (Miller) appeals the sentence imposed upon his g u ilt y -p le a conviction for illegal reentry. See 8 U.S.C. § 1326. In calculating M ille r 's guideline range of imprisonment, the district court applied an eight-level e n h a n c e m e n t pursuant to U.S.S.G. § 2L1.2(b)(1)(C) based on Miller's prior N e b r a s k a conviction for theft by receiving stolen property. Section

2 L 1 .2 (b )(1 )(C ) provides that the offense level for unlawfully entering the United S t a te s should be increased by eight levels if the defendant was previously
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-50682 Document: 00511278726 Page: 2 Date Filed: 10/29/2010 No. 09-50682 r e m o v e d subsequent to an aggravated felony conviction. The definition of

" a g g r a v a t e d felony" includes "a theft offense (including receipt of stolen p r o p e r t y ). 8 U.S.C. § 1101(a)(43)(G); § 2L1.2, comment. (n.3). Miller argues (1) that the district court erred in assessing the eight-level e n h a n c e m e n t pursuant to § 2L1.2(b)(1)(C) because it did not have sufficient in fo r m a t io n before it from which to ascertain the elements of the Nebraska o ffe n s e and (2) that the Nebraska statute of conviction criminalizes different m e t h o d s of committing theft, including methods that cannot form the basis for a sentencing enhancement under § 2L1.2(b)(1)(C). He argues that his prior N e b r a s k a conviction warranted only a four-level increase in his offense level b e c a u s e it qualifies as a felony but not as an aggravated felony. A s Miller concedes, any error resulting from the enhancement is subject t o plain error review because he did not object to the enhancement in the district c o u r t. FED.R.CRIM.P. 52(b); United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2 0 0 5 ). Plain error review involves the following four prongs: First, there must b e an error or defect that has not been affirmatively waived by the defendant. Second, the error must be clear or obvious, i.e., not subject to reasonable dispute. Third, the error must have affected the defendant's substantial rights. Fourth, if the above three prongs are satisfied, this court has the discretion to correct the e r r o r only if it "seriously affect[s] the fairness, integrity or public reputation of ju d ic ia l proceedings." Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (in t e r n a l quotation marks and citation omitted). Miller's first argument is factually incorrect. As Miller acknowledges, the d is t r ic t court had before it a copy of the Nebraska judgment of conviction. It was a p p r o p r ia te for the district court to consider and rely upon this state court d o c u m e n t in determining the applicability of the enhancement under § 2L1.2(b)(1)(C). See Taylor v. United States, 495 U.S. 575, 602 (1990); Shepard v . United States, 544 U.S. 13, 16 (2005).

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Case: 09-50682 Document: 00511278726 Page: 3 Date Filed: 10/29/2010 No. 09-50682 M ille r acknowledges in his appeal brief that the Nebraska statute of c o n v ic t io n was NEB. REV. STAT. § 28-517 (2008). Nebraska's definition of theft b y receiving stolen property is almost identical to the definition in the Model P e n a l Code § 223.6(1). See United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th C ir . 2006). Nebraska's definition also falls within the generic, contemporary d e fin it io n of "a theft offense." § 1101(a)(43)(G); see Burke v. Mukasey, 509 F.3d 6 9 5 , 697 (5th Cir. 2007). Thus, the district court correctly determined that M ille r 's prior Nebraska conviction was for an "aggravated felony" within the m e a n in g of § 2L1.2(b)(1)(C) and that the enhancement was proper. Miller has n o t shown that the district court erred in applying the eight level enhancement. See Puckett, 129 S. Ct. at 1429. A F F IR M E D .

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