     Case: 09-30595    Document: 00511140532         Page: 1    Date Filed: 06/14/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                         June 14, 2010

                                      No. 09-30595                       Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

JORGE ALBERTO HERNANDEZ-CASTILLO,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CR-251-1


Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jorge Alberto Hernandez-Castillo pled guilty to being unlawfully in the
United States after having previously been deported. He claims the district
court erred by imposing a particular sentencing enhancement and by departing
upwardly or varying from the calculated Guidelines range.
        We AFFIRM.




*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 09-30595

                                           FACTS
       On August 18, 2008, Jorge Alberto Hernandez-Castillo, a native of
Honduras, was arrested for public drunkenness in New Orleans, Louisiana. A
routine record check revealed that Hernandez-Castillo was in the country
illegally after having previously been deported to Honduras in 2005 and again
in 2006. Hernandez-Castillo was taken into immigration custody and charged
with knowingly and unlawfully being in the United States after deportation in
violation of 8 U.S.C. § 1326(a)(2). He pled guilty to the indictment without the
benefit of a plea agreement.
       In the Presentence Report (“PSR”), the probation officer calculated
Hernandez-Castillo’s base offense level to be eight. She recommended a two-
level reduction for acceptance of responsibility, and a four-level enhancement
due to three or more prior convictions for misdemeanor crimes of violence
pursuant to U.S.S.G. § 2L1.2(b)(1)(E). This total offense level of ten, plus the
criminal history category of VI, resulted in a recommended Guidelines sentence
range of twenty-four to thirty months. The probation officer recommended a
thirty-month sentence. However, she noted that Hernandez-Castillo’s criminal
history score substantially under-represented the seriousness of his criminal
history, because only nine of his thirty-two misdemeanor convictions were
countable towards his criminal history score.1 Therefore, the probation officer
suggested that an upward departure may be warranted.


1
       A majority of Hernandez-Castillo’s uncounted convictions fell into one of two categories:
(1) misdemeanor convictions for which he served jail time, but where he was either not
represented by counsel or it was unclear whether he was represented by counsel; or (2)
misdemeanor convictions for crimes such as vagrancy, hitchhiking, and trespassing, which are
not counted when calculating a criminal history score.


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     Prior to announcing the sentence, the district court explained that in
determining whether an upward departure was warranted, he did not take into
account the convictions resulting in imprisonment in which Hernandez-Castillo
was not represented or the representation by counsel was unknown. However,
the district court explained that it could properly consider the underlying
conduct leading to these convictions.       Finally, the district court gave the
following explanation concerning Hernandez-Castillo’s sentence:
     In considering whether an upward departure is appropriate, I have
     also considered the nature of your prior conduct and the severity of
     your past conduct. I have considered the fact that there are a
     number of constitutionally obtained convictions for which you
     received no criminal history points. You have obviously been
     unresponsive to prior punishment.

                               *        *         *

     Considering the likelihood of recidivism and all the other factors
     that underlie this Court’s sentencing today, including the need to
     provide you with adequate anger management skills and drug and
     alcohol treatment, I have reviewed each of the intermediate base
     offense levels which follow base offense level 10, which when
     combined with Criminal History Category VI, has a guideline range
     of 24 to 30 months. I have determined after incrementally moving
     to each of the next higher offense levels that an appropriate
     guideline range is offense level 16, which has a guideline range of 46
     to 57 months.

     Alternatively, for the reasons I just assigned, if I have committed
     legal error in determining that an upward departure is appropriate
     pursuant to Section 4A1.3 of the United States Sentencing
     Guidelines. I state for the record that having considered the factors
     set forth in 18 U.S.C. Section 3553(a) and for reasons I assigned, a
     non-guideline sentence or a variance is appropriate in this case.



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Accordingly, Hernandez-Castillo was sentenced to a fifty-seven month term of
imprisonment.
      On appeal, Hernandez-Castillo claims the district court committed two
errors warranting reversal.     First, he argues the district court committed
reversible plain error by applying the Section 2L1.2(b)(1)(E) enhancement
because he does not have three qualifying prior misdemeanor convictions for
crimes of violence. Second, Hernandez-Castillo argues that the district court
erred by departing, or in the alternative, varying from the Guidelines range, on
the basis of the conduct underlying the misdemeanor convictions obtained in
violation of the Sixth Amendment right to counsel.
                                 DISCUSSION
      Sentences both inside and outside the Guidelines range are reviewed for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). First, the
court must determine whether the district court committed any significant
procedural errors, such as improperly calculating the Guideline range. Id. If the
sentence   is   procedurally   sound,   the   court   considers   the   substantive
reasonableness of the sentence imposed. Id. The district court’s application of
the Guidelines is reviewed de novo, and its factual findings are reviewed for
clear error. United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).
      A.    Application of Section 2L1.2(b)(1)(E) Sentencing Enhancement
      Hernandez-Castillo unlawfully entered the United States after having
been deported to Honduras in 2005 and 2006. Therefore, a four-level sentence
enhancement could be imposed if he had three or more misdemeanor convictions
for crimes of violence. U.S.S.G. § 2L1.2(b)(1)(E). The PSR identified three
Nevada misdemeanor convictions as the basis for imposing this enhancement:


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(1) an August 1999 assault conviction; (2) an October 1999 conviction for threat
to life; and (3) an April 2004 battery conviction.
      For the first time on appeal, Hernandez-Castillo raises two challenges to
the imposition of this enhancement. First, he claims that under Nevada law,
battery does not constitute a crime of violence. Therefore, the April 2004 battery
conviction is not a proper basis for the enhancement. Second, he argues that the
October 1999 threat to life conviction is not a proper basis for the enhancement,
because it was obtained in violation of his Sixth Amendment right to counsel.
Hernandez-Castillo concedes that plain error review applies, because these
alleged errors were not raised in the trial court. See United States v. Peltier, 505
F.3d 389, 392 (5th Cir. 2007).
             (1)    April 2004 Battery Conviction
      To determine whether a prior offense constitutes a crime of violence, we
do not look to the defendant’s actual conduct but “consider the offense
categorically by looking ‘only to the fact of conviction and the statutory definition
of the prior offense.’” United States v. Gomez-Gomez, 547 F.3d 242, 244 (5th Cir.
2008) (en banc) (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). We
review de novo the characterization of a prior offense as a crime of violence.
United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006).
      Nevada law defines “battery” as “any willful and unlawful use of force or
violence upon the person of another.” Nev. Rev. Stat. § 200.481(1)(a). For a
conviction under this statute to constitute a crime of violence, the offense must
either (1) be one of several enumerated “offenses under federal, state, or local
law,” or (2) be “any other offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force against the


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                                  No. 09-30595

person of another.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii). In this circuit, the force
necessary for an offense to constitute a crime of violence is “synonymous with
destructive or violent force.” United States v. Dominguez, 479 F.3d 345, 348 (5th
Cir. 2007) (citation and quotation marks omitted).
      In unpublished opinions, other circuits have already held that a Nevada
conviction for battery constitutes a crime of violence. See United States v. Ayala-
Ayala, 46 F. App’x 489, 490 (9th Cir. 2002) (unpublished); see also Vega v.
Holder, 348 F. App’x 662, 664 (2d Cir. 2009) (holding that a Nevada conviction
for domestic violence, which adopts the battery definition in Section 200.481,
constitutes a crime of violence) (unpublished).
      However, Hernandez-Castillo argues that the Nevada Supreme Court
recently noted that mere touching is sufficient force to constitute battery. See
Collins v. State, 203 P.3d 90 (Nev. 2009). Thus, he claims his April 2004 battery
conviction cannot constitute a crime of violence. The issue before the Nevada
Supreme Court in Collins was whether the state statutory definition of
“substantial bodily harm” as “prolonged physical pain” was unconstitutionally
vague. Id. at 91. The court concluded that “the phrase ‘prolonged physical pain’
must necessarily encompass some physical suffering or injury that lasts longer
than the pain immediately resulting from the wrongful act.”          Id. at 92-93.
Following this statement, the court provided this example: “In a battery, for
example, the wrongdoer would not be liable for ‘prolonged physical pain’ for the
touching itself. However, the wrongdoer would be liable for any lasting physical
pain resulting from the touching.” Id. at 93 n.3.
      We do not interpret this example as revealing a conclusion by the Nevada
court that the offense of battery is committed by mere touching. Furthermore,


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Hernandez-Castillo has not cited, nor have we found, any case where a
defendant was convicted under Section 200.481 for merely touching the victim.
      The district court was likely correct that a conviction under Section
200.481 constitutes a crime of violence. However, we would not reverse even if
this conclusion were erroneous, because such error would not be plain. Under
plain error review, “an error is not ‘plain’ unless it is ‘clear’ or ‘obvious.’” United
States v. Salazar, 542 F.3d 139, 147-48 (5th Cir. 2008) (citing United States v.
Olano, 507 U.S. 725, 734 (1993)). This court has never addressed this specific
issue. The two courts that have done so both held that a conviction under this
statute is a crime of violence. The footnote in Collins does not make it obvious
that a conviction under Section 200.481 is not a crime of violence. Therefore,
Hernandez-Castillo has failed to show that it was plainly erroneous for the
district court to count this conviction as part of the basis for the sentencing
enhancement.
             (2)    October 1999 Threat to Life Conviction
      The PSR indicates that Hernandez-Castillo was not represented by
counsel when he pleaded nolo contendere to the threat to life charge in October
1999, and then received a fifty-two day sentence for this conviction. A conviction
violates the right to counsel if it is uncounseled and actually results in
imprisonment.      Alabama v. Shelton, 535 U.S. 654, 661-62 (2002).              Such
convictions cannot be used to enhance a subsequent sentence. See Custis v.
United States, 511 U.S. 485, 494-95 (1994). It appears the district court erred
in counting this conviction as part of the basis for the sentencing enhancement.
However, Hernandez-Castillo cannot prevail under plain error review, because
he was not prejudiced by this error.


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                                  No. 09-30595

      Hernandez-Castillo has Nevada misdemeanor convictions for “battery-
domestic violence” in March 1997 and June 2005. Both of these convictions were
obtained while Hernandez-Castillo was represented by counsel. Under Nevada
law, a person commits the offense of domestic violence by committing battery
against a specifically-listed type of person, such as a spouse, former spouse,
minor child, etc. See Nev. Rev. Stat. § 33.018(1)(a). The definition of battery in
the domestic violence statute is the same as the definition provided in Section
200.481. English v. State, 9 P.3d 60, 64 (Nev. 2000). Therefore, the district
court could have counted either of the battery-domestic violence convictions as
part of the basis for imposing the enhancement.
      Since there are at least three convictions that could have been considered
as the basis for imposing the Section 2L1.2(b)(1)(E) sentencing enhancement,
Hernandez-Castillo was not prejudiced by any error. Accordingly, he has not
met his burden under plain error review.
      B.    Upward Departure/Variance
      Hernandez-Castillo alleges the district court erred in determining that an
upward departure or variance was warranted, because the district court
considered the underlying actions on which the constitutionally invalid
convictions were based.
      A conviction violates a defendant’s Sixth Amendment right to counsel if it
is uncounseled and results in imprisonment. Shelton, 535 U.S. at 661-62. Under
Nevada law, the state bears the burden to make an affirmative showing “either
that counsel was present or that the right to counsel was validly waived, and
that the spirit of constitutional principles was respected in the prior
misdemeanor proceedings before the record of the prior misdemeanor may be


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                                       No. 09-30595

used for enhancement purposes.”2 Dressler v. State, 819 P.2d 1288, 1295 (Nev.
1991). It is undisputed that the government cannot meet this burden on fifteen
of Hernandez-Castillo’s convictions for which he actually received jail time.
       At sentencing, the district court explained that it would not consider the
unconstitutional convictions themselves when determining whether an upward
departure was warranted.           However, the district court also explained that
pursuant to U.S.S.G. § 4A1.3(a), it could consider the criminal conduct
underlying any conviction that was not counted in the criminal history score.
Hernandez-Castillo argues that the district court erred by considering the
criminal conduct underlying these unconstitutional convictions. We disagree.
       A comment in the Guidelines states that “[s]entences resulting from
convictions that . . . have been ruled constitutionally invalid in a prior case are
not to be counted. . . . Nonetheless, the criminal conduct underlying any
conviction that is not counted in the criminal history score may be considered
pursuant to § 4A1.3 (Adequacy of Criminal History Category).” U.S.S.G. § 4A1.2
cmt. 6. In addition, Section 4A1.3(a)(2) lists the types of information that can
form the basis for an upward departure. These include prior sentences “not used
in computing the criminal history category (e.g., sentences for foreign and tribal
offenses).” Id. § 4A1.3(a)(2)(A). These Guidelines sections suggest the district
court did not err by considering the underlying conduct of the unconstitutionally
obtained convictions when determining whether a departure was warranted.
       Even when an improper enhancement affects the calculation of the range
under the Guidelines, the sentence may still be upheld when the district court

2
        We look to state law to determine which party bears the burden of proof in a collateral
attack on a prior state court conviction. Mallard v. Cain, 515 F.3d 379, 382 (5th Cir. 2008)
(citing Iowa v. Tover, 541 U.S. 77, 92 (2004)).

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acknowledges the possibility of the error and affirmatively states that the
sentence would be the same regardless. United States v. Bonilla, 524 F.3d 647,
656-59 (5th Cir. 2008). The district court explained the sentence in terms of the
relevant factors, including a demonstrated lack of respect for the law as
evidenced by his numerous convictions and the likelihood of recidivism. See 18
U.S.C. § 3553(a) factors.        Thus, regardless of any error in applying the
enhancement, a fifty-seven month sentence as a variance was justified.3
       AFFIRMED.




3
      Hernandez-Castillo does not challenge the substantive reasonableness of the sentence.
Therefore, we do not address this issue.

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