     Case: 11-40108     Document: 00511721799         Page: 1     Date Filed: 01/11/2012




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

                                                                            FILED
                                                                         January 11, 2012
                                       No. 11-40108                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JOSE DIMAS-FLORES,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:10-CR-1352-1


Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Jose Dimas-Flores pleaded guilty to one count of being found in the United
States following deportation in violation of 8 U.S.C. § 1326. The Presentence
Investigation Report (“PSR”) calculated that Dimas-Flores’s base offense level
was eight and that eight levels should be added because Dimas-Flores’s prior
Texas conviction for attempted tampering with a government record constituted
an aggravated felony under 8 U.S.C. § 1101(a)(43)(P). Dimas-Flores did not
object to the eight-level aggravated felony enhancement at sentencing, but


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40108

instead sought a downward variance based on his alleged criminal history over-
representation. Dimas-Flores now contends oppositely that the district court
erred in its classification of one prior criminal conviction as an aggravated felony
warranting the eight-level enhancement. We affirm.
      Dimas-Flores and the government agree that Dimas-Flores made no
objection to the eight-level enhancement at sentencing. Dimas-Flores and the
government disagree, however, about whether this constituted a waiver or a
forfeiture. Waiver is the intentional relinquishment of a known right. United
States v. Olano, 507 U.S. 725, 733 (1993). A waiver “occurs by an affirmative
choice by the defendant to forego any remedy available to him, presumably for
real or perceived benefits resulting from the waiver.” United States v. Dodson,
288 F.3d 153, 160 (5th Cir. 2002). Forfeiture, on the other hand, is the failure
to make the timely assertion of a right. Olano, 507 U.S. at 733. As described
below, Dimas-Flores did not overlook the enhancement. Dimas-Flores endorsed
application of the enhancement both orally and in writing to contend that his
criminal history was over-represented.
      First, Dimas-Flores filed objections to the PSR that acknowledged the
content of paragraphs 27 and 28, which set forth his prior felony for attempted
tampering with a government document that was categorized by the PSR as an
“aggravated felony.” Second, when the district judge asked if Dimas-Flores had
“any objections” to the PSR at sentencing, defense counsel responded by
requesting a “downward variance based on over-representation . . . under
paragraphs 25 and 26, also 27 and 28.” Third, later during sentencing, after
Dimas-Flores spoke asking for leniency, defense counsel interjected to “address
the court again,” and said “[t]he eight-level adjustment, Your Honor, he’s getting
that because at the time of the arrest on those paragraphs 27 and 28, he had in
his possession . . . a Social Security card, and that’s why they’re using that for
the eight-level enhancement, Your Honor.” Defense counsel stated “he’s getting

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                                   No. 11-40108

that” enhancement for the felony and conduct Dimas-Flores now seeks to argue
could not qualify for such an enhancement. Paragraphs 27 and 28 of the PSR,
the paragraphs assented to and used by Dimas-Flores, specifically refer to a
“fictitious social security card and drivers license which the defendant claimed
were his forms of identification.”
      Both parties agree that Rule 52 plain error review applies. Plain error
requires (1) error, (2) that is clear or obvious, and (3) that affects substantial
rights; if those elements are satisfied, we may exercise discretion to remedy the
error if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Puckett v. United States, 129 S.Ct. 1423, 1429 (2009).
Dimas-Flores’s ‘twas I but ‘tis not I effort to rescind his earlier sentencing
position on appeal complicates three of four steps in this Rule 52 process. The
Supreme Court has explained that the first step of Rule 52 analysis—a showing
of error—is not met when the alleged error is one that was “intentionally
relinquished or abandoned, i.e., affirmatively waived, by the appellant.” Puckett,
129 S.Ct. at 1429 (citing Olano, 507 U.S. at 733). Dimas-Flores contends that
his commitment at sentencing to the enhancement, though affirmative, was not
knowing, citing United States v. Andino-Ortega, 608 F.3d 305, 308 (5th Cir.
2010). This hindsight assurance is not one we can verify and, as a larger
principle, is in tension with reasons behind Rule 52(b). See Puckett, 129 S.Ct. at
1431-32 (requiring objection means that a litigant cannot “‘game’ the system,
‘wait[ing] to see if the sentence later str[ikes] him as satisfactory’ . . . and then
seeking a second bite at the apple by raising the claim”; also, requiring objection
is significant when error is not conceded, whereupon “the district court if
apprised of the claim will be in a position to adjudicate the matter in the first
instance, creating a factual record and facilitating appellate review”). Second,
our decision in Andino-Ortega is distinguishable because the defendant in that
case simply erred legally, whereas here Dimas-Flores built his affirmative

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sentencing argument for leniency around application of the enhancement. Our
decision in United States v. Fernandez-Cusco, 447 F.3d 382 (5th Cir. 2006), is
a closer parallel because the defendant “did more than fail to object to [an]
enhancement; he affirmatively recognized it was being applied and indicated it
was proper” by requesting a downward departure based on alleged criminal
history over-representation. Id. at 384. This court noted in Fernandez-Cusco
that such an affirmative use “arguably constitutes invited error,” yet “out of an
abundance of caution,” reviewed and denied sentencing relief stating that the
record presented in that case did not show a clear or obvious error. Id. at 384,
388.
         As in Fernandez-Cusco, affirmative use of an argument later reconfigured
as reversible error therefore also complicates the second step of the Rule 52
analysis, namely, that “the legal error must be clear or obvious, rather than
subject to reasonable dispute.” Puckett, 129 S.Ct. at 1429 (citing Olano, 507 U.S.
at 734). Error of the sort claimed by Dimas-Flores is hardly clear, as the parties
dispute extensively. Categorization of a prior conviction generally is best
resolved through factual inquiry not yet done, though available through close
scrutiny of a limited set of documents associated with a defendant's past
criminal judgments. Shepard v. United States, 544 U.S. 13, 16 (2005); Nolos v.
Holder, 611 F.3d 279, 285 (5th Cir. 2010).           Neither party has sought to
supplement the record on appeal with other documents that would qualify, if
they exist, such as a written plea agreement or transcript of plea colloquy. See
Id.
         Dimas-Flores does not show clear or obvious error because he
unmistakably agreed that the prior conviction involved “a fictitious social
security card and drivers license which [he] claimed were his forms of
identification.”       An “aggravated felony” under 8 U.S.C. § 1101(a)(43)(P), is
defined, inter alia, as “an offense . . . which . . . is described in section 1546(a) .

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. . . ” 8 U.S.C. § 1101(a)(43)(P). Section 1546(a), in turn, proscribes, inter alia,
misuse of documents including the possession of a “document prescribed by
statute or regulation for . . . employment in the United States . . . knowing it .
. . to be falsely made . . . . ” 18 U.S.C. § 1546(a). Dimas-Flores’s adoption and use
of paragraphs 27 and 28 of his PSR include his possessory claim to a “fictitious
social security card,” a factual admission which we previously have said is
sufficient. United States v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009) (holding
that “reliance on a defendant’s admission of facts that are contained in the PRS
is permissible”) (citing United States v. Martinez-Vega, 471 F.3d 559, 563 (5th
Cir. 2006)).
      Finally, affirmative use of an argument later reconfigured as reversible
error complicates any determination we would make under the final step of the
Rule 52 analysis, which permits this court to exercise its discretion to remedy an
error if the error “‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Olano, 507 U.S. at 736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)). When a defendant invites an outcome he
later contests, we are less likely to characterize that outcome as a miscarriage
of justice. See Dodson, 288 F.3d at 162. In Dodson, this court held that defense
counsel’s acquiescence (“I believe so”) to a sentencing enhancement waived his
later complaint against it, but then “[a]lternatively,” the court denied the
complaint on the basis that no miscarriage of justice existed in the specific
sentencing circumstances of that case.          Id.    Dimas-Flores’s use of his
enhancement allowed him to urge criminal history over-representation and
request “a sentence not greater than necessary to meet the statutory objectives
of sentencing under 18 U.S.C. 3553.” At sentencing, Dimas-Flores urged, more
specifically, for three points off his criminal history category.       Comparing
benefits between the sentencing approach Dimas-Flores pursued, albeit
unsuccessfully, and the one he seeks to assert at a resentencing, gives us no

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confidence that disallowing this second effort impugns the integrity of the
judicial process.
      Because Dimas-Flores repeatedly agreed to the eight-level aggravated
felony enhancement and to the facts underlying the enhancement, we hold that
no miscarriage of justice is apparent in this unusual circumstance.
      For the foregoing reasons, Dimas-Flores’s conviction and sentence are
AFFIRMED.




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