USA v. Noe Fernandez-Sanchez

Filing 920100927

Opinion

Case: 09-50823

Document: 00511244344

Page: 1

Date Filed: 09/24/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50823 S u m m a r y Calendar September 24, 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. N O E CRUZ FERNANDEZ-SANCHEZ, also known as Jesus Alfredo Fernandez, a ls o known as Noe Cruz-Fernandez, also known as Noe Sanchez-Fernandez, 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. 6:09-CR-88-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* N o e Cruz Fernandez-Sanchez appeals from his conviction of illegal r e e n tr y . He contends that the district court erred by adjusting his offense level p u r s u a n t to section 2L1.2(b)(1)(A) of the Sentencing Guidelines based on his s t a t e court deferred adjudication of aggravated assault on a peace officer with a deadly weapon. He argues that it was improper to use the deferred

a d ju d ic a t io n because he pleaded nolo contendere and thus was not determined

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Case: 09-50823

Document: 00511244344 Page: 2 No. 09-50823

Date Filed: 09/24/2010

t o be guilty. He further contends that the use of his deferred adjudication c o n s t it u t e d a bill of attainder. Fernandez-Sanchez did not raise his contentions in the district court; our review thus is for plain error. Puckett v. United States, 1 2 9 S. Ct. 1423, 1428 (2009). T h e state court magistrate who took Fernandez-Sanchez's nolo contendere p le a determined that the evidence was sufficient to establish his guilt. His nolo c o n t e n d e r e plea was the equivalent of a guilty plea. See TEX. CODE CRIM. P . ANN. arts. 27.02(5), 42.12 § 5(a); United States v. Cuevas, 75 F.3d 778, 781 n.8 (5 t h Cir. 1996). The district court did not err by using the deferred adjudication t o adjust Fernandez-Sanchez's offense level. See United States v. Valdez-Valdez, 1 4 3 F.3d 196, 198-201 (5th Cir. 1998). A bill of attainder is "a law that legislatively determines guilt and inflicts p u n is h m e n t upon an identifiable individual without provision of the protections o f a judicial trial." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1 9 7 7 ); see also Communist Party of the United States v. Subversive Activs. C o n t r o l Bd., 367 U.S. 1, 86 (1961) ("The singling out of an individual for le g is la t iv e ly prescribed punishment constitutes an attainder whether the in d iv id u a l is called by name or described in terms of conduct which, because it is past conduct, operates only as a designation of particular persons."). T h e use of deferred adjudications to adjust an offense level pursuant to s e c t io n 2L1.2 does not single out Fernandez-Sanchez for a determination of guilt a n d the imposition of punishment. See Nixon, 433 U.S. at 468. F e r n a n d e z -S a n c h e z has failed to demonstrate error, plain or otherwise. A F F IR M E D .

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