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United States v. Juan Diaz-Damian , 577 F. App'x 283 ( 2014 )


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  •      Case: 13-11205      Document: 00512725000         Page: 1    Date Filed: 08/06/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
August 6, 2014
No. 13-11205                                  Lyle W. Cayce
Summary Calendar                                     Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JUAN DIAZ-DAMIAN,
Defendant−Appellant.
Appeals from the United States District Court
for the Northern District of Texas
No. 3:12-CR-433-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Juan Diaz-Damian appeals the sentence imposed following his guilty-
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11205      Document: 00512725000      Page: 2    Date Filed: 08/06/2014
No. 13-11205
plea conviction of illegal reentry after removal from the United States. He
contends that the district court plainly erred in imposing a sixteen-level
enhancement under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A), using the
Presentence Report (“PSR”) and an abstract of judgment to establish that he
had a California conviction for lewd or lascivious acts with a child under Cali-
fornia Penal Code § 288(a). He asserts that this court has held that the PSR
and an abstract of judgment do not fall within the class of documents that may
be used to establish a conviction for purposes of the enhancement.
As Diaz-Damian concedes, because he failed to object to the district
court’s reliance on the PSR and abstract of judgment in district court, this issue
is reviewed only for plain error. See United States v. Chavez-Hernandez,
    671 F.3d 494
    , 497 (5th Cir. 2012). To show plain error, he must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States,
    556 U.S. 129
    , 135 (2009). If he makes such a showing, this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
    Id.
    The facts of this case do not implicate Taylor v. United States,
    495 U.S. 575
     (1990), or Shepard v. United States,
    544 U.S. 13
     (2005). A district court
may consider certain non-Shepard state adjudicative documents to determine
the existence of a conviction. See United States v. Neri-Hernandes,
    504 F.3d 587
    , 591-92 (5th Cir. 2007); see also United States v. Moreno-Florean,
    542 F.3d 445
    , 450 n.1 (5th Cir. 2008) (“California abstracts of judgment have sufficient
indicia of reliability to support their probable accuracy such that the docu-
ments can be used as evidence of a prior conviction.”).
The district court did not plainly err in relying on the abstract of judg-
ment to determine the existence of the conviction. See Neri-Hernandes,
    504 F.3d at 
    591−92; see also Moreno-Florean,
    542 F.3d at 
    449 & n.1. Although this
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Case: 13-11205    Document: 00512725000      Page: 3   Date Filed: 08/06/2014
No. 13-11205
evidence is rebuttable, Diaz-Damian did not present any evidence calling into
question the reliability of the abstract of judgment, and he does not dispute
that he was convicted under Section 288(a). Therefore, the district court’s reli-
ance on the abstract of judgment to establish the existence of the conviction
was not error. See Neri-Hernandes,
    504 F.3d at 591-92
    ; see also Moreno-
Florean,
    542 F.3d at 
    449 & n.1.
In addition, the government has supplemented the appellate record with
documents, acceptable under Shepard, that establish the California conviction.
Thus, there is no error, plain or otherwise.     See United States v. Garcia-
Arellano,
    522 F.3d 477
    , 480−82 & n.1 (5th Cir. 2008); see also United States v.
Escalante-Reyes,
    689 F.3d 415
    , 422−23 (5th Cir. 2012) (en banc).
Moreover, Diaz-Damian has not shown that any error affected his sub-
stantial rights. A conviction under Section 288(a) constitutes sexual abuse of
a minor for purposes of the sixteen-level enhancement under § 2L1.2. See
United States v. Vega-Alvarado, 548 F. App’x 134, 134−35 (5th Cir. 2013); see
also United States v. Jerez, 542 F. App’x 379, 379 (5th Cir. 2013). Diaz-Damian
does not dispute that he was convicted under Section 288(a) or that a conviction
under that statute is sexual abuse of a minor under § 2L1.2. He cannot show
that there is a reasonable probability that, but for the district court’s alleged
error in relying on the abstract of judgment, he would have received a lesser
sentence. See Puckett,
    556 U.S. at 135
    ; United States v. Ochoa-Cruz,
    442 F.3d 865
    , 867 (5th Cir. 2006) (holding that without claiming that the sentencing
enhancement was ultimately wrong, the defendant cannot show that he would
have received a lesser sentence).
AFFIRMED.
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