United States v. Manuel Rivas , 599 F. App'x 134 ( 2015 )

Case: 13-30779 Document: 00512987217 Page: 1 Date Filed: 03/31/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30779
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 31, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MANUEL RIVAS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:13-cr-28-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Manuel Rivas appeals the 72-month sentence imposed following his jury
trial conviction for failing to depart from the United States. Rivas argues that
the district court plainly erred in applying a 16-level enhancement pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his 2009 Arkansas conviction for
second degree sexual assault. Rivas argues that the district court plainly erred
in relying solely on the PSR in determining whether to apply the enhancement.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30779 Document: 00512987217 Page: 2 Date Filed: 03/31/2015
No. 13-30779
The Government supplemented the record on appeal with documents,
including a prosecutor’s report, which it contends can be used to narrow the
statute under which Rivas was convicted, but Rivas asserts that report should
not be considered by this court because it is not a reliable document under
Shepard v. United States, 544 U.S. 13, 16 (2005).
Rivas did not object in the district court to the application of the 16-level
enhancement. Accordingly, his procedural challenge to his sentence is
reviewed for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494,
497 (5th Cir. 2012).
We need not address whether the prosecutor’s report is sufficiently
reliable under Shepard because Rivas’s admissions in the district court were
sufficient, on plain error review, to narrow the subsection of the Arkansas
statute of conviction to a forcible sex offense. The presentence report (PSR)
reflects that Rivas engaged in sexual intercourse or sexual activity with
another person by forcible compulsion, that Rivas digitally penetrated the
vagina of his female victim, that the victim was eight years-old, and that Rivas
was 40 years-old at the time of the offense. Rivas admitted that he reviewed
the PSR carefully, that he had no objections to the PSR, that there were no
errors in the PSR, and that no corrections, alterations, or additions to the PSR
were necessary.
“A district court can use all facts admitted by the defendant in
determining whether the prior conviction qualifies as an enumerated offense
under § 2L1.2.” United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir.
2006) (internal quotation marks and citation omitted). Thus, Rivas’s
admissions narrow the statute of conviction to § 5-14-125(a)(1) of the Arkansas
Code, which this court has held is a forcible sex offense that qualifies as a crime
of violence for purposes of § 2L1.2. See United States v. Herrera, 647 F.3d 172,
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No. 13-30779
177-80 (5th Cir. 2011); U.S.S.G. § 2L1.2, comment. (n.1(B)(iii). Thus, the
application of the enhancement did not constitute clear or obvious error in light
of Rivas’s admissions. See Martinez-Vega, 471 F.3d at 563; see also United
States v. Jenkins, 487 F.3d 279, 281 (5th Cir. 2007) (concluding that the district
court did not commit clear or obvious error in applying a sentencing
enhancement where the record was silent regarding whether the district court
had examined any supporting Shepard-approved documents but the defendant
admitted that his prior convictions were felonies).
Accordingly, the judgment of the district court is AFFIRMED.
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Case: 13-30779 Document: 00512987217 Page: 4 Date Filed: 03/31/2015
No. 13-30779
HAYNES, Circuit Judge, specially concurring:
I concur in the judgment of the court but write separately to clarify that
this case should not be read as a suggestion that an “admitted-to” PSR is alone
sufficient to support a crime of violence enhancement. In this case, the PSR
section in question begins “According to court records,” and then proceeds to
describe the facts regarding the age of the victim and the conduct in question,
thus reasonably implying that this factual information came from the “court
records.” On plain error review, we cannot assume that these “court records”
were not “Shepard-approved” court records, and thus we cannot conclude that
the district court erred in relying upon these court records that describe the
facts of the offense. In turn, these facts are consistent only with sections of the
Arkansas statute that clearly constitute a “crime of violence.” Accordingly, I
concur in affirming the district court’s judgment.
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