     Case: 13-41330      Document: 00512827271         Page: 1    Date Filed: 11/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 13-41330
                                                                                FILED
                                                                         November 5, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,
v.

LUIS ALDOLFO MAZAREGO-SALAZAR, also known as David L. Nazarego,
also known as Luis Diaz

                                                 Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:13-CR-1190-1




Before DAVIS, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Luis Aldolfo Mazarego-Salazar pleaded guilty to
being found in the United States following deportation and was sentenced to
70 months in prison. He appeals from his sentence, arguing that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41330


court erred by (1) applying, over his objection, a 16-level “crime of violence”
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a 2005 New York state
conviction for assault second degree, and (2) erroneously calculating his
criminal history points by including two separate prior convictions for intent
to obtain transportation without paying. For the reasons set out below, we
AFFIRM the 16-level crime of violence enhancement, VACATE the criminal
history points determination, and REMAND for resentencing consistent with
this opinion.
                       FACTS AND PROCEEDINGS
      Mazarego-Salazar pleaded guilty to being found in the United States
following deportation. The presentence investigation report (“PSR”), assigned
a base offense level of 8 and increased it by 16 levels because Mazarego-Salazar
had a 2005 New York state conviction for assault second degree, which the PSR
characterized as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). After a
two-level reduction for acceptance of responsibility, the total offense level was
22. Mazarego-Salazar objected to the 16-level enhancement, arguing that the
documentation submitted by the Government was insufficient to support a
finding that the prior conviction was a crime of violence.
      The PSR assigned Mazarego-Salazar a total of 11 criminal history points
for a criminal history category V. This calculation included two points for two
separate convictions for intent to obtain transportation without paying.
Mazarego-Salazar filed no objection to these two criminal history points. The
resulting Guidelines range was 77 to 96 months or 70 to 87 months in prison
if he was given a third point for acceptance of responsibility.
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         At sentencing, the Government moved that Mazarego-Salazar be given
the third level for acceptance of responsibility. Mazarego-Salazar again argued
that the document submitted to support the 16-level crime of violence
enhancement (discussed below) was not a certified document. The district court
overruled the objection, finding that the document in question was “a judgment
reflecting the charge, the plea[,] and the sentence.” The district court found
that a Guidelines sentence was appropriate and sentenced Mazarego-Salazar
to 70 months in prison. Mazarego-Salazar timely filed a notice of appeal.
         On appeal, Mazarego-Salazar reurges his objection to the 16-level crime
of violence enhancement and argues for the first time that his two prior
convictions for intent to obtain transportation without paying should not have
been used to calculate his criminal history points.
    CRIME OF VIOLENCE ENHANCEMENT UNDER § 2L1.2(b)(1)(A)(ii)
         Mazarego-Salazar primarily argues that the district court erred in
characterizing his 2005 New York assault conviction as a crime of violence
because the state court documents supporting the conviction did not satisfy the
certainty requirement of Shepard v. United States, 544 U.S. 13 (2005), i.e.,
whether we may determine from appropriate documentation whether his
“prior conviction ‘necessarily’ involved (and a prior plea necessarily admitted)
facts equating to” a crime of violence. 1 Under Gall v. United States, 552 U.S.
38, 51 (2007), this court reviews a sentence for reasonableness whether it is




1   544 U.S. at 24.
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within or outside of the guidelines range. 2 In conducting this review, the court
“must first ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines
range.” 3
       A defendant convicted of illegal reentry is subject to a Guidelines
enhancement if he was convicted of a “crime of violence” prior to his removal
or deportation. U.S.S.G. § 2L1.2(b)(1)(A)(ii). This court reviews de novo
whether a prior conviction qualifies as a crime of violence within the meaning
of the Guidelines when a defendant raises the issue in the district court. 4
Before a district court may impose a sentencing enhancement such as
§ 2L1.2(b)(1), the Government must prove by a preponderance of the evidence
any facts necessary to justify the enhancement. 5 The district court’s factual
findings are reviewed for clear error. 6 A factual finding is not clearly erroneous
if it is plausible in light of the record as a whole. 7 This court will find clear
error only if a review of the record results in a “definite and firm conviction
that a mistake has been committed.” 8
       Under Shepard, a court making a determination under § 2L1.2 may look
beyond the statute of conviction to “the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge and


2 United States v. Rodriguez, 711 F.3d 541, 547 (5th Cir.) (en banc), cert. denied, 134 S. Ct.
512 (2013).
3 Gall, 552 U.S. at 51.
4 United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005).
5 See Rodriguez, 630 F.3d at 380.
6 Id.
7 Id.
8 Id. (internal quotation marks and citation omitted).

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defendant in which the factual basis for the plea was confirmed by the
defendant, or to some other comparable judicial record of this information.’” 9
      In this case, the Government introduced a seven-count indictment that
charged Mazarego-Salazar in count two with assault in the second degree
under New York Penal Code § 120.05(2). Mazarego-Salazar concedes that
United States v. Neri-Hernandes, 504 F.3d 587, 589 n.1 (5th Cir. 2007), held
that this is a crime of violence under § 2L1.2(b)(1)(A)(ii). Mazarego-Salazar
argues that the untitled handwritten document submitted by the Government
to show that he pleaded guilty to that particular charge was not adequate
because, among other things, it contained no certification regarding the source
of the information provided. 10
      The document is a two-page printed form whose first page is headed by
the words “Supreme Court of the State of New York” and provides spaces for
the case name and indictment number. Both pages contain boxes for each step
in the criminal proceeding, with spaces in each to identify the officials and
counsel present at each stage. On Mazarego-Salazar’s form, the boxes for
Arraignment, Plea, and Sentence are filled in, setting out the individuals
present and relevant comments. The Plea box indicates a guilty plea to second
degree assault in count 2 for § 120.05(2). Printed at the bottom of the Sentence
box is the statement “DEFENDANT GIVEN WRITTEN NOTICE OF HIS
RIGHT TO APPEAL” with a checkbox beside it and signature line below it.




9 Shepard, 544 U.S. at 26; United States v. Garcia-Arrellano, 522 F.3d 477, 480 (5th Cir.
2008).
10 See Neri-Hernandes, 504 F.3d 590-92.

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The box is checked, and the form is signed by the Honorable Carol Berkman,
Justice of Supreme Court.
       The document in question appears to have been generated by clerical
staff, and, generally, these types of documents are not Shepard-approved. 11
Nevertheless, this court has indicated that a clerical-type document may be
used simply to prove the basis of the underlying conviction, not determine the
underlying facts. 12 In Neri-Hernandes, for instance, we determined that New
York certificates of disposition could be used to identify the precise subsection
of the statute under which a defendant was convicted if the certificates had
“sufficient indicia of reliability to support their probable accuracy.” 13
Furthermore, we specifically noted that the defendant produced no evidence
challenging the reliability of the certificate. 14
       Thus, whether the document relied on here to prove the existence of the
conviction is of the type approved by Shepard appears to be irrelevant, despite
Mazarego-Salazar’s arguments to the contrary. 15 Mazarego-Salazar has


11 United States v. Gutierrez-Ramirez, 405 F.3d 352, 357-59 (5th Cir. 2005) (determining that
a California abstract of judgment, which was generated by court clerical staff, could not be
used in the categorical approach to prove a crime of violence).
12 See United States v. Moreno-Florean, 542 F.3d 445, 449-50 & n.1 (5th Cir. 2008) (using the

defendant’s indictment and a California abstract of judgment to prove the existence of a prior
conviction, where the abstract of judgment was not being used to narrow the statute of
conviction based upon the facts underlying the offense).
13 504 F.3d at 590-92
14 Id. at 592. We also noted that “Shepard does not apply when determining whether the

government has satisfied its burden of proof as to the existence of a prior conviction.” Id. at
591.
15 See Neri-Hernandes, 504 F.3d at 592. We quoted with approval the Tenth Circuit’s

reasoning that “‘[a] case summary obtained from a state court and prepared by a clerk—even
if not certified by that court—may be sufficiently reliable evidence of conviction for purposes
of enhancing a federal sentence where the defendant fails to put forward any persuasive
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produced no evidence challenging the reliability of the document in question,
and the Government is using it only to show that he was convicted of assault
in the second degree under New York Penal Code § 120.05(2), not to determine
the underlying facts. Moreover, Mazarego-Salazar has not asserted at any time
that he was not in fact convicted of that crime. Accordingly, we hold that the
district court did not err in imposing the 16-level crime of violence
enhancement under § 2L1.2(b)(1)(A)(ii), and we affirm that part of the
sentence.
                         CRIMINAL HISTORY POINTS
       Next, Mazarego-Salazar argues that the district court committed
reversible plain error in assessing criminal history points based on his two
convictions for intent to obtain transportation without paying, commonly
known as fare beating. As noted above, Mazarego-Salazar filed no objection to
these two criminal history points. He concedes that that review of this issue is
for plain error only. To show plain error, he must show a forfeited error that is
clear or obvious and that affects his substantial rights. 16 If he makes such a
showing, this court has the discretion to correct the error but only if it
“‘seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.’” 17
       Mazarego-Salazar cites United States v. Sanders, 205 F.3d 549, 553-54
(2d Cir. 2000), and United States v. Florez-Florez, 74 F. App’x 363, 364 n.1 (5th



contradictory evidence.’” Id. at 591 (quoting United States v. Zuniga-Chavez, 464 F.3d 1199,
1205 (10th Cir. 2006)).
16 See Puckett v. United States, 556 U.S. 129, 135 (2009).
17 Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

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Cir. 2003), for the proposition that fare beating is a petty offense that should
be excluded from the criminal history score pursuant to U.S.S.G. § 4A1.2(c)(1).
The Government concedes the substance of these cases but asserts that they
are insufficient to establish plain error because neither case is binding
precedent. That is not correct. Even if a decision is persuasive authority only,
it does not affect its utility in establishing an error as plain or obvious. 18
Accordingly, under both Sanders and Florez-Florez, it was clear error to
include the two fare beating cases in Mazarego-Salazar’s criminal history
points calculation.
       To show that a sentencing error affected his substantial rights,
Mazarego-Salazar must demonstrate a reasonable probability that he would
have received a lesser sentence but for the error. 19 It is undisputed that
without the error his criminal history category would have been IV rather than
V, and his guidelines range would have been 51 to 71 months rather than 70
months to 87 months in prison. The 70-month term of imprisonment imposed
is at the bottom of the guidelines range used by the district court but near the
top of the guidelines range that should have applied. When a sentence falls
within both the correct and incorrect guidelines ranges, this court has “shown
considerable reluctance in finding a reasonable probability that the district
court would have settled on a lower sentence.” 20



18 United States v. Medina-Torres, 703 F.3d 770, 777 (5th Cir. 2012).
19 See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
20 United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010) (applying the reasonable

probability test required for plain error review) (internal quotation marks and citation
omitted); but see United States v. Price, 516 F.3d 285, 289 & n.28 (5th Cir. 2008) (finding the
reasonable probability of a shorter sentence where sentencing ranges overlapped).
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        This court will not assume in the absence of more evidence that the error
affected the sentence. 21 In United States v. Pratt, 728 F.3d 463, 482 (5th Cir.
2013), cert. denied, 134 S. Ct. 1328 (2014), this court held that such additional
evidence exists when the sentencing court has indicated that the calculated
guidelines range “was a primary factor in the selection of the . . . sentence.” In
this case, the district court stated that “a sentence within the Guideline range
is necessary here.” The court then stated that it was imposing a sentence at
the low end of the range. The court was careful in structuring a concurrent
revocation sentence to prevent Mazarego-Salazar from serving more than 70
months. The Government emphasizes, on the other hand, that the district
court also stated that it had considered all the § 3553(a) factors and concluded
that 70 months in prison was appropriate given all of the circumstances of the
case.
        Based on the district court’s carefully structuring the sentence to fall at
the extreme low end of the incorrect Guidelines range, we conclude that it is
probable the court would have sentenced Mazarego-Salazar differently under
the correct Guidelines range. Accordingly, we conclude Mazarego-Salazar’s
substantial rights were affected by the district court’s error in calculating his
criminal history score and that the error seriously affects the fairness,
integrity, and public reputation of judicial proceedings. 22 Therefore, we vacate
the sentence with respect to the criminal history points calculation and remand
for further proceedings consistent with this opinion.


21United States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011); Blocker, 612 F.3d at 416.
22See Pratt, 728 F.3d at 481-82 (vacating sentence and remanding on plain error review of
calculation of guidelines range).
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                             CONCLUSION
     For the reasons set out above, we AFFIRM the 16-level crime of violence
enhancement, VACATE the criminal history points determination, and
REMAND for further proceedings consistent with this opinion.




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                                 No. 13-41330


JENNIFER WALKER ELROD, Circuit Judge, concurring in part and
dissenting in part:
      I agree with the majority’s analysis and conclusion regarding the
criminal history points calculation. However, I would also vacate the sentence
because the district court erred in imposing the 16-level crime-of-violence
enhancement under § 2L1.2(b)(1)(A)(ii).         The evidence the government
proffered to demonstrate the existence of Mazarego-Salazar’s prior conviction
lacks sufficient indicia of reliability to support its accuracy.       We have
previously permitted the use of abstracts and certificates of disposition to
establish the existence of a prior conviction, but our precedent has never gone
so far as to permit the establishment of a predicate conviction on the basis of a
document as lacking in formality as that presented here. See, e.g., United
States v. Moreno-Florean, 542 F.3d 445, 449 & n.1 (5th Cir. 2008) (allowing the
use of a California abstract of judgment to establish a prior conviction because
an abstract of judgment “serves as ‘the process and authority for carrying the
judgment and sentence into effect.’”) (quoting People v. Mitchell, 26 P.3d 1040,
1043 (2001)); United States v. Neri-Hernandes, 504 F.3d 587, 592 (5th Cir.
2007) (allowing the use of a Certificate of Disposition to establish a prior
conviction because, under New York law, a Certificate of Disposition is a
judicial record courts regularly consider when deciding on sentence
enhancements).
      The government—the party who bears the burden of proof—presented
no evidence of what, precisely, this document is, who created it, or what it is
used for in New York courts. The government has offered no evidence that this
document is the type of document that would be accepted in a New York court
as evidence of a prior conviction, or that would warrant any degree of deference
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or recognition in New York courts. 1 Accordingly, upon resentencing, I would
require the government to come forward with reliable evidence to establish the
conviction in support of the 16-level enhancement.




1 While there does appear to be a judge’s signature in the document stamp, nothing in the
form suggests that the signature relates to content outside the stamp itself. The majority’s
view is that the signature applies to the entire form, but the government offered no evidence
to support this view.
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