United States v. Mauricio Ortega-Cazares , 609 F. App'x 518 ( 2015 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                               JUL 15 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES OF AMERICA,                        No. 14-10414               U.S. COURT OF APPEALS
    Plaintiff - Appellee,              D.C. No. 4:13-cr-00692-JGZ-
    LAB-1
    v.
    MAURICIO ORTEGA-CAZARES, AKA                     MEMORANDUM*
    Mauricio Ortega-Cazarez,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Jennifer G. Zipps, District Judge, Presiding
    Submitted July 9, 2015**
    San Francisco, California
    Before: GILMAN,*** GRABER, and WATFORD, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Ronald Lee Gilman, Senior Circuit Judge for the
    United States Court of Appeals for the Sixth Circuit, sitting by designation.
    Mauricio Ortega-Cazares challenges the 40-month prison sentence imposed
    following his guilty plea for being a removed alien found in the United States, in
    violation of 
    8 U.S.C. § 1326
    . We affirm.
    This is Ortega-Cazares’s second appeal of his sentence. He was initially
    sentenced to 40 months in prison and a two-year term of supervised release. That
    sentence rested, in large part, on a 16-level enhancement under U.S.S.G.
    § 2L1.2(b)(1)(A)(ii) for Ortega-Cazares’s having previously been convicted of a
    crime of violence—namely, a 2009 New York conviction for attempted second-
    degree assault. While Ortega-Cazares’s appeal was still pending, this court granted
    the parties’ joint motion to vacate his sentence due to the government’s failure to
    provide the district court with any documentation specifying the statutory basis for
    Ortega-Cazares’s New York conviction. Such proof is required to justify the
    § 2L1.2(b)(1)(A)(ii) enhancement.
    At resentencing, the government provided additional documentation in the
    form of the transcript from Ortega-Cazares’s change-of-plea hearing in state court,
    the New York indictment, and a certificate of disposition. The district court again
    applied the crime-of-violence enhancement and imposed the same sentence as
    before.
    2
    Ortega-Cazares contends that the documentation before the district court on
    resentencing was still insufficient to prove that his prior conviction was for a crime
    of violence. Although Ortega-Cazares acknowledges that he was convicted of
    violating New York’s assault statute (Penal Law § 120.05), he claims that the
    government failed to demonstrate that his conviction fell under Subsection (2) of
    that law—which Ortega-Cazares concedes would constitute a crime of
    violence—rather than Subsection (4), which would not trigger the enhancement
    under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Ortega-Cazares contends that the district
    could erred by failing to require the government to produce the judgment of
    conviction or a transcript of Ortega-Cazares’s New York sentencing hearing. We
    disagree.
    So long as the documents submitted to the district court reliably establish the
    statute of conviction, this court has not required the submission of a particular type
    of evidence. See United States v. Romero-Rendon, 
    220 F.3d 1159
    , 1161-62 (9th
    Cir. 2000) (“The Sentencing Guidelines allow judges to rely at sentencing on ‘any
    information . . . so long as it has sufficient indicia of reliability to support its
    probable accuracy.’” (alteration in original) (quoting United States v. Marin-
    Cuevas, 
    147 F.3d 889
    , 894-95 (9th Cir. 1998))). The documents in question here
    provided sufficient proof that Ortega-Cazares was convicted under New York
    3
    Penal Law § 120.05(2). The indictment accused Ortega-Cazares of a “violation of
    Penal Law § 120.05 (2),” and the change-of-plea hearing similarly focused on the
    charge of “attempted assault in the second degree . . .[,] a Class E Felony in
    violation of Penal Law section 110 and 120.05(2).” Taken together, the documents
    sufficiently prove that Ortega-Cazares pleaded guilty to a violation of New York
    Penal Law § 120.05(2), a crime of violence for purposes of U.S.S.G.
    § 2L1.2(b)(1)(A)(ii).
    To the extent that Ortega-Cazares contends that the 16-level enhancement
    was improper because New York’s attempt statute—Penal Law § 110—is broader
    than the federal definition of the same terms, he is mistaken. This court has
    previously concluded that the New York attempt statute “is no broader than the
    common law definition,” United States v. Rivera-Ramos, 
    578 F.3d 1111
    , 1115 (9th
    Cir. 2009), and this panel may not overrule that precedent absent “clearly
    irreconcilable . . . intervening higher authority,” Miller v. Gammie, 
    335 F.3d 889
    ,
    893 (9th Cir. 2003) (en banc). Despite Ortega-Cazares’s argument to the contrary,
    no such intervening authority exists.
    AFFIRMED.
    4