United States v. Urbina-Rodriguez , 165 F. App'x 302 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 27, 2006
Charles R. Fulbruge III
Clerk
No. 05-40495
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE URBINA-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-785-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Urbina-Rodriguez (Urbina) appeals the
sentence imposed following his guilty-plea conviction for illegal
reentry after deportation. Urbina argues that the district court
committed reversible plain error when it enhanced his sentence
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior
conviction, in Kentucky state court, for sexual abuse.
The Government argues that Urbina waived his right to raise
this argument on appeal by “knowingly and intentionally” failing
*
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this opinion should not be published and is not precedent except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. 05-40495
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to raise the issue during sentencing. Alternatively, the
Government seeks to enforce the waiver of appeal executed by
Urbina in the plea agreement. We reject both contentions. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005);
FED. R. CRIM. P. 11(b)(1)(N).
Under the 2004 version of § 2L1.2(b)(1)(A)(ii), a person
convicted of illegal reentry faces a 16-level increase in their
base offense level if, prior to deportation, they were convicted
of a felony that is “a crime of violence.” The term “crime of
violence means any of the following: forcible sex offenses . . .
or any offense under federal, state, or local law that has an
element of use, attempted use, or threatened use of physical
force against the person of another.”
§ 2L1.2, comment. (n.1(b)(iii)).
When, as here, the statute to which Urbina pleaded guilty
contained multiple, disjunctive subsections, a district court may
“look beyond the statute to certain ‘conclusive records made or
used in adjudicating guilt’ in order to determine which
particular statutory alternative applies to the defendant’s
conviction.” United States v. Gonzalez-Chavez, F.3d (5th
Cir. Nov. 30, 2005), No. 04-40173, 2005 WL 3196524 at *2
(internal quotation and citation omitted). “These records are
generally limited to the ‘charging document, written plea
agreement, transcript of the plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
No. 05-40495
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assented.’” Id. (citing Shepard v. United States, 125 S. Ct.
1254, 1257 (2005)). “Reliance on the PSR will not suffice.” Id.Although the defendant in Gonzalez-Chavez was raising his
challenge to the application of § 2L1.2(b)(1)(A)(ii) for the
first time on appeal, we refused to consider facts contained in
the PSR which related to the alleged conduct of the prior
offense. Id. Because the record contained no other documents
upon which it could rely to determine whether the prior offense
fit under the definition of a crime of violence, we remanded the
case for resentencing. Id. at *2-3.
The instant case is controlled by Gonzalez-Chavez, 2005 WL
3196524 at *2. Accordingly, we VACATE the sentence and REMAND
for resentencing.
Urbina also argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Urbina’s argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Urbina contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi, we have repeatedly rejected such arguments on the basis
that Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.
Ct. 298 (2005). Urbina properly concedes that his argument is
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foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
VACATE AND REMAND FOR RESENTENCING.