     Case: 14-40168     Document: 00512999382      Page: 1   Date Filed: 04/09/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-40168
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                             April 9, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JOSE MENDOZA, also known as Jose Mendoza-Arriola,

             Defendant - Appellant




                      Appeal from the United States District Court
                           for the Southern District of Texas


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
EDITH B. CLEMENT, Circuit Judge:
      Jose Mendoza was indicted on one count of unlawfully entering the
United States after having previously been deported, in violation of 8 U.S.C. §
1326. He pleaded guilty to the count on November 4, 2013. After finding that
Mendoza had previously been deported in 2008 following a federal conviction
for conspiracy to launder monetary instruments, the sentencing judge applied
an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). Mendoza
was sentenced within the advisory guidelines range to a sentence of forty-one
months. He challenges this eight-level enhancement on appeal.
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      The issue on appeal is whether the district court committed plain error
when it found that Mendoza’s prior money laundering conviction was an
aggravated felony. The parties do not dispute that Mendoza was convicted of
conspiracy to commit money laundering. Mendoza contends, however, that the
district court relied on the presentence report in order to prove that his prior
conviction was an aggravated felony, in violation of Shepard v. United States,
544 U.S. 13 (2005).
      Because Mendoza did not raise this issue in district court, we review for
plain error. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th
Cir. 2008). Plain error review has three components. First, Mendoza must
show that there was an error, and that it was clear or obvious. Puckett v.
United States, 556 U.S. 129, 135 (2009). Second, he must show that this error
affected his substantial rights.    Id.   Third, he must show that this error
“seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and alteration omitted).
      Mendoza received an eight-level enhancement under U.S.S.G. §
2L1.2(b)(1)(C) for previously being deported after committing an aggravated
felony. Money laundering is an aggravated felony if “the amount of the funds
exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(D). 1 The federal money laundering
statute under which Mendoza was convicted, however, does not contain a
$10,000 threshold. See 18 U.S.C. § 1956. Since Mendoza’s conviction did not
necessarily involve an amount greater than $10,000, the district court was
required to look to evidence outside the text of the statute in order to determine
if a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C) was warranted.
      The issue Mendoza appeals is what documents may be considered in this


      1  Application Note 3(A) to U.S.S.G. § 2L1.2 defines “aggravated felony” by
incorporating 8 U.S.C. § 1101(a)(43)(D).
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determination. Mendoza contends that the district court erred by examining
documents beyond those permitted under the modified categorical approach
set forth in Shepard, 544 U.S. 13 and Taylor v. United States, 495 U.S. 575
(1990). These cases concern instances when a district court must determine
whether a generic crime in a statutory provision is covered by a prior
conviction. In such an instance, the district court is limited to “the statutory
definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard, 544 U.S. at 16.
      The issue before the district court in this case, however, was not whether
the generic crime in 8 U.S.C. § 1101(a)(43)(D) (the sentencing statute) was
satisfied by 18 U.S.C. § 1956(h) (the statute of conviction). The issue before
the district court was whether Mendoza’s prior money laundering conviction
involved loss in excess of $10,000. Thus, the district court’s analysis was
governed by Nijhawan v. Holder, 557 U.S. 29 (2009), not Shepard or Taylor.
      In Nijhawan the Supreme Court held that when a statute “does not refer
to generic crimes but refers to specific circumstances,” Taylor does not apply.
557 U.S. at 37. A generic crime would include “the crime of fraud or theft in
general.” Id. at 34. In contrast, a specific circumstance refers to the “specific
way in which an offender committed the crime on a specific occasion.” Id.
      In Nijhawan, the question was whether the fraud offense was an
aggravated felony for deportation purposes when the statute defining
aggravated felony had a $10,000 threshold requirement but the charged
statute for the prior conviction did not. Id. at 32. The Court noted that the
definitional statute, 8 U.S.C. § 1101(a)(43), contains a long list of offenses,
several of which clearly do not refer to generic crimes. Id. at 37–38; See also,
e.g., 8 U.S.C. § 1101(a)(43)(M)(i) (stating that fraud is an aggravated felony if

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the loss exceeds $10,000), (P)(ii) (stating that forging a passport is an
aggravated felony if the maximum term of imprisonment is at least 12 months,
unless the alien was only helping a “spouse, child, or parent”). Since there is
no generic crime equivalent to some of the Section 1101(a)(43)’s subdivisions,
the Court held that those subdivisions must refer to “particular circumstances
in which an offender committed the crime on a particular occasion.” Nijhawan,
557 U.S. at 38.
      Having found the circumstance-specific approach applicable, the Court
held that it could “find nothing unfair about the Immigration Judge’s having
here relied upon earlier sentencing-related material” in determining that a
conviction qualified as an aggravated felony. Id. at 42. Specifically, the Court
held that it was permissible for the Immigration Judge to consider the
defendant’s stipulation at sentencing and the court’s restitution order for the
prior conviction to determine the amount of loss involved in the crime. Id. at
42–43.
      Additionally, this court has extended the Nijhawan circumstance-
specific analysis beyond the immigration context, to criminal law, when faced
with facts similar to those in this case. United States v. Gonzalez-Medina, 757
F.3d 425, 428–32 (5th Cir. 2014), applied the circumstance-specific approach
to determine if a state sexual assault conviction satisfied the elements of the
federal Sex Offender Registration and Notification Act (“SORNA”).             In
Gonzalez-Medina the defendant was convicted for failing to register as a sex
offender under SORNA. SORNA exempted from the definition of sex offender
offenses where the victim was over thirteen and the perpetrator was not more
than four years older than the victim.        Id. at 428 (citing 42 U.S.C. §
16911(5)(C)). The defendant challenged his failure-to-register conviction on
the basis that, applying the categorical approach, the statute of his prior

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conviction did not qualify as a sex offense under SORNA because it did not
contain SORNA’s age exception. After a careful examination of the text of
SORNA, this court found that the categorical approach did not apply, and that
there was no error in the district court’s consideration of evidence presented
by the government showing the defendant’s and victim’s ages for the prior
conviction. Id. at 431–32.
      Applying Nijhawan to this case, we turn to the language of Section
1101(a)(43)(D), which defines an aggravated felony as “an offense described in
section 1956 of Title 18 [the section Mendoza was convicted under] . . . if the
amount of the funds exceeded $10,000.”        The first step in the Nijhawan
analysis is to determine if this section defines a generic crime or a specific
circumstance.
      Section 1101(a)(43)(D) clearly refers to a specific circumstance. The
language “if the amount of the funds exceeded $10,000,” creates a subcategory
of money laundering convictions that qualify as aggravated felonies. Absent
this provision, the section would refer to generic money laundering. But, its
inclusion clearly signals that Congress intended for only a subcategory of
money laundering offenses—those over $10,000—to be classified as aggravated
felonies. Understood another way, a court determining the applicability of
Section 1101(a)(43)(D) must look beyond the text of the money laundering
statutes to determine if the funds from the underlying crime exceeded $10,000
because the statutes themselves say nothing about the amount of lost money.
Indeed, Nijhawan itself involved an identical $10,000 threshold requirement,
and the Supreme Court found that requirement to be circumstance specific
rather than an element of the offense. 557 U.S. at 40.
      Consider also that interpreting Section 1101(a)(43)(D) under the generic
crime categorical approach would render the section meaningless.            The

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categorical approach would hold that only those crimes defined in 18 U.S.C. §
1956 which include as an element that the laundered funds exceed $10,000 are
aggravated felonies. This would render the section meaningless because no
crime in 18 U.S.C. § 1956 contains a $10,000 loss requirement.
      The district court, therefore, was not determining whether a prior
conviction met the elements of a generic crime in a statute. The restrictions
set forth in Shepard and Taylor did not apply. The district court did not err in
considering the PSR and attached documents in order to determine if
Mendoza’s conviction for conspiring to launder money was an aggravated
felony.
      The PSR and the attached documents show that Mendoza was charged
with money laundering under 18 USC § 1956 and pleaded guilty to that count.
The evidence submitted to the district court also shows, by a preponderance of
the evidence, that Mendoza’s money laundering involved more than $10,000.
See United States v. Teuschler, 689 F.3d 397, 399 (5th Cir. 2012) (“The
Government bears the burden of proving by a preponderance of the relevant
and reliable evidence that the facts support a sentencing enhancement.”
(internal quotation marks omitted)); see also Hakim v. Holder, 628 F.3d 151,
153–55 (5th Cir. 2010) (holding that Section 1101(a)(43)(D) requires that the
money laundering involve more than $10,000, not that $10,000 or more was
tainted). The PSR given to the court described the prior conviction for money
laundering as involving at least $52,120. This, absent evidence to rebut it, is
sufficient to support the district court’s determination that Mendoza’s money
laundering involved more than $10,000. See United States v. Alaniz, 726 F.3d
586, 619 (5th Cir. 2013) (“Generally, a PSR bears sufficient indicia of reliability
to permit the sentencing court to rely on it at sentencing. In the absence of


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rebuttal evidence, the sentencing court may properly rely on the PSR and
adopt it.” (internal alterations and quotation marks omitted)).
      In conclusion, whether a defendant’s previous money laundering
conviction satisfies 8 U.S.C. § 1101(a)(43)(D)’s $10,000 threshold is a question
of specific circumstances. The evidence a court may consider under a specific
circumstances inquiry is broader than the evidence that may be considered
under a modified-categorical analysis inquiry. The district court, therefore,
did not err in examining the PSR in order to determine that Mendoza
committed an aggravated felony. We AFFIRM the district court’s ruling.




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