                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS                        July 5, 2006

                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                        No. 05-2199
 v.
                                                 (D.C. No. CR-04-1144 JB)
                                                       (New M exico)
 FR AN CISC O C HA M O RR O-
 RESEND EZ,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Francisco Chamorro-Resendez brings this appeal challenging the district

court’s sixteen-level enhancement of his sentence pursuant to U.S.S.G. § 2L1.2.

The district court concluded M r. Chamorro-Resendez’s prior conviction for third

degree assault in Colorado was a crime of violence warranting the enhancement

laid out in section 2L1.2. W e exercise jurisdiction pursuant to 18 U.S.C. §


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
3742(a) and 28 U.S.C. § 1291, and affirm.

      M r. Chamorro-Resendez pled guilty to one count of unlawful reentry by a

previously deported alien in violation of 8 U.S.C. § 1326. The presentence report

(PSR ) recommended pursuant to U.S.S.G. § 2L1.2(b)(1)(A) that his base level

offense be increased by sixteen levels for a prior conviction of domestic violence

third degree assault in the state of C olorado, which the PSR characterized as a

crime of violence. 1 The PSR indicated that according to arrest reports, M r.

Chamorro-Resendez “cause[d] bodily injury” to his wife. Rec., vol. II at 9. M r.

Chamorro-Resendez’s first attorney during the sentencing phase raised a number

of objections to the PSR, but explicitly did “not dispute that [M r. Chamorro-

Resendez’s] conviction is a crime of violence.” Id., vol. I, doc. 17 at 2. The

attorney did claim that M r. Chamorro-Resendez’s Sixth A mendment rights were

violated by the enhancement because he did not admit, nor did a jury find, that he

had been convicted for the underlying assault charge.

      At the sentencing hearing, new counsel again conceded the violent nature

of M r. Chamorro-Resendez’s prior conviction, stating “I cannot say that the third-

degree assault – I can’t say that it wasn’t a violent offense, because it’s a

domestic violence conviction . . . .” Id., vol. IV at 8.   Counsel did not advance



      1
        Commentary to guideline section 2L1.2 indicates that a “crime of
violence” can be an “aggravated assault . . . or any offense under federal, state, or
local law that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).

                                          -2-
the arguments raised by M r. Chamorro-Resendez’s first sentencing attorney.

Instead, counsel challenged the enhancement on Equal Protection grounds. The

district court rejected this argument but granted M r. Chamorro-Resendez’s motion

for a downward departure in his criminal history category. Id. at 18.

      Prior to issuing a sentence, the court gave all counsel a final opportunity to

lodge any objections. Neither side did so. The court adopted the factual findings

and guideline applications detailed in the PSR, with the exception of the criminal

history category departure it granted to M r. Chamorro-Resendez. The court then

determined M r. Chamorro-Resendez had a total offense level of 21 and a criminal

history category of III, resulting in a sentencing range of 46 to 57 months. The

court sentenced M r. Chamorro-Resendez to 46 months.

      On appeal, M r. Chamorro-Resendez contends his sentence runs afoul of the

Supreme Court’s recent rulings in Shepard v. United States, 544 U.S. 13 (2005),

and Taylor v. United States, 495 U.S. 575 (1990), and our decision in United

States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005). He asserts the district

court erred in applying the sixteen-level enhancement for his domestic violence

conviction because the district court relied on facts detailed in the PSR, which in

turn relied on an arrest report. Shepard and Taylor generally provide that in

determining whether a prior conviction is a crime of violence for sentencing

purposes, the sentencing court must take “a formal categorical approach, looking

only to the statutory definitions of the prior offenses, and not to the particular

                                          -3-
facts underlying those convictions.” Taylor, 495 U.S. at 600. If the statute could

cover varying forms of violent and non-violent behavior, the sentencing court

may consider the “terms of the charging document, the terms of a plea agreement

or transcript of colloquy between judge and defendant in which the factual basis

for the plea [or verdict] w as confirmed by the defendant, or to some comparable

judicial record of this information.” Shepard, 544 U.S. at 26. However, a

sentencing court may not “look to police reports or complaint applications to

determine whether an earlier guilty plea necessarily admitted, and supported a

conviction for, generic burglary.” Id. at 16.

      Following Shepard and Taylor, we examined the Colorado assault statute at

issue here and held in Perez-Vargas that third degree assault convictions do not

categorically qualify as prior crimes of violence under guideline section 2L1.2

because the statutory language “does not necessarily include the use or threatened

use of ‘physical force’ as required by the Guidelines.” 414 F.3d at 1287.

Because the Colorado statute w as ambiguous, we held the sentencing court should

look to the types of material approved in Shepard and Taylor to determine

whether an enhancement was appropriate. Id. at 1284-85. Because the district

court in Perez-Vargas applied the enhancement in derogation of Shepard and

Taylor, we remanded the case for further proceedings. Id. at 1287. M r.

Chamorro-Resendez contends that the district court’s enhancement of his sentence

for his domestic violence conviction was unlawful under this trio of cases because

                                         -4-
the court relied on the PSR, which in turn relied improperly on arrest reports.

      Because M r. Chamorro-Resendez raises this issue for the first time on

appeal, we review only for plain error. “Plain error occurs when there is (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc) (citation omitted). The government concedes that M r. Chamorro-

Resendez “can show . . . the first three prongs of plain error in this case.” Aple.

Br. at 7. W e therefore limit our analysis to the final prong of plain error review.

W e will exercise our discretion to notice the error “only if it seriously effects the

fairness, integrity, or public reputation of the judicial proceedings.” Gonzales-

Huerta, 403 F.2d at 736.

       At sentencing, the district court adopted the PSR’s factual findings,

including the statement that M r. Chamorro-Resendez “cause[d] bodily harm to”

his w ife. Rec., vol. II at 9; id., vol. IV at 20. At no point did M r. Chamorro-

Resendez contest the accuracy of that finding or object to the district court’s

adoption of the PSR findings. M oreover, M r. Chamorro-Resendez had conceded

on at least two prior occasions that his Colorado conviction was a violent crime

under the sentencing guidelines. Id., vol. I, doc. 17 at 2; id., vol. IV at 8.

      W e have commented that “[w]here a defendant acquiesces to the district

court’s findings of fact that support an enhancement with little or no objection,

                                           -5-
leaving the resulting plain error uncorrected poses little risk to the fairness or

integrity of judicial proceedings.” United States. v. Hauk, 412 F.3d 1179, 1197-98

(10th Cir. 2005); see also United States v. Harris, ___ F.3d ___, No. 05-2199,

2006 W L 1314654 at *5-6 (10th Cir. M ay 15, 2006). M r. Chamorro-Resendez not

only conceded that his prior conviction was a crime of violence, he also failed to

object to the district court’s adoption of the PRS’s factual findings concluding the

same. In light of these concessions, we are not persuaded the district court’s

determination that M r. Chamorro-Resendez’s Colorado conviction was a crime of

violence seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Cf. United States v. M astera, 435 F.3d 56, 61-62 (1st Cir. 2006) (no

plain error under second prong of test where district court enhanced defendant’s

sentence relying on defendant’s admission in sentencing memorandum that prior

crime satisfied definition for generic burglary).

      Nor can M r. Chamorro-Resendez prevail on his constitutional challenge to

his sentence. In his initial objections to the PSR, M r. Chamorro-Resendez

contended his sentence violated the Sixth Amendment because he did not admit

to, nor did a jury find beyond a reasonable doubt, that he was convicted of the

underlying assault charge. On appeal, M r. Chamorro-Resendez makes a similar

general argument that his sentence violated his constitutional rights. But the

binding authority of Almendarez-Torres v. United States, 523 U.S. 224 (1998),

which serves as an exception to Apprendi v. New Jersey, 530 U.S. 466 (2000),

                                          -6-
precludes M r. Chamorro-Resendez’s argument.

      Apprendi requires that any fact increasing a sentence beyond the statutory

maximum must be submitted to a jury. Id. at 490. Prior to Apprendi, the Supreme

Court held that because recidivism “is a traditional, if not the most traditional,

basis for a sentencing court’s increasing an offender’s sentence,” Almendarez-

Torres, 523 U.S. at 243, the fact of a prior conviction was not required to be

charged in an indictment against a defendant. Apprendi incorporated the

Almendarez-Torres exception into its holding, stating that “[o] ther than the fact

of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added).

      Almendarez-Torres has recently come under some fire, see Shepard, 544

U.S. at 27-28 (Thomas, J., concurring), but has not been overruled. “[W ]e will

not presume to do so for the Court, and we are bound by existing precedent to

hold that the Almendarez-Torres exception to the rule announced in Apprendi and

extended to the Guidelines in Booker remains good law.” United States v. M oore,

401 F.3d 1220, 1224 (10th Cir. 2005). M r. Chamorro-Resendez’s Sixth

Amendment challenge to his sentence is unavailing.




                                          -7-
W e AFFIRM .


               ENTERED FOR THE COURT


               Stephanie K. Seymour
               Circuit Judge




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