United States v. Urrutia-Jimenez , 286 F. App'x 151 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 11, 2008
No. 07-50825
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLOS EFRAIN URRUTIA-JIMENEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-1856
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Carlos Efrain Urrutia-Jimenez pleaded guilty to one count of unlawful
reentry following deportation. The district court sentenced him to 70 months in
prison after imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)
for a prior California conviction for a crime of violence, specifically, robbery.
Urrutia-Jimenez challenges various aspects of his conviction and sentence. For
the following reasons, we affirm.
*
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should not be published and is not precedent except under the limited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.
No. 07-50825
Urrutia-Jimenez contends that the evidence was insufficient to establish
that he had a prior conviction for robbery in California or the timing of the
conviction as required for the enhancement. Because he did not raise this
objection, we review only for plain error. See United States v. Garcia-Mendez,
420 F.3d 454, 456 (5th Cir. 2005). We question the merit of Urrutia-Jimenez’s
argument that the Government was required to produce certain types of
documents to prove the fact of the prior conviction. See United States v. Neri
Hernandes, 504 F.3d 587, 591-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 1106
(2008). In any event, any error does not require reversal under the plain error
standard as the record has now been supplemented with appropriate documents
establishing that Urrutia-Jimenez was convicted of robbery under § 212.5(c) of
the California Penal Code.
With respect to Urrutia-Jimenez’s contention that robbery under
California law is not a crime of violence under § 2L1.2(b)(1)(A), we recently
rejected similar arguments. See United States v. Tellez-Martinez, 517 F.3d 813,
814 (5th Cir. 2008). Thus, Urrutia-Jimenez’s challenge to the enhancement fails.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Urrutia-Jimenez
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
Finally, Urrutia-Jimenez contends that the district court deprived him of
his right to counsel of his choice by dissuading him from obtaining new counsel.
Our review is for plain error. Urrutia-Jimenez was represented by appointed
counsel. Thus, he did not have a right to choose appointed counsel. See United
States v. Fields, 483 F.3d 313, 350 (5th Cir. 2007), cert. denied, 128 S. Ct. 1065
(2008). Further, he did not at any time indicate that he wished to retain private
2
No. 07-50825
counsel; to the contrary, he indicated that he did not have the resources to do so.
In addition, despite discouraging Urrutia-Jimenez from seeking new counsel, the
district judge repeatedly informed him that he would appoint new counsel or
allow him to retain counsel if that was Urrutia-Jimenez’s wish. Urrutia-Jimenez
stated that he would keep his appointed counsel and the record does not reveal
that he ever requested new counsel. We find no clear or obvious error that would
warrant reversal. See Garcia-Mendez, 420 F.3d at 456.
The judgment of the district court is AFFIRMED.
3