     Case: 11-10835   Document: 00512030849     Page: 1    Date Filed: 10/24/2012




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

                                                                    FILED
                                                                  October 24, 2012

                                   No. 11-10835                    Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee
v.

JOSE VARGAS-SOTO,

                                             Defendant-Appellant



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


Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        Jose Vargas-Soto challenges his sentence on appeal, which was calculated
using an enhancement applicable to aggravated felonies. Vargas-Soto also
appeals the district court’s upward departure from the Guidelines sentence for
the crime of illegal reentry. We AFFIRM.
                FACTUAL AND PROCEDURAL BACKGROUND
        On April 20, 2011, Vargas-Soto pled guilty to one count of illegal reentry
after deportation in violation of 18 U.S.C. § 1326. Vargas-Soto’s Pre-sentence
Investigative Report (“PSR”) calculated a final offense level of 21: a base level of
8 under U.S.S.G. § 2L1.2(a) (2010), a 16-level enhancement for an aggravated
felony conviction of manslaughter under U.S.S.G. § 2L1.2(b)(1)(A), and a 3-level
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reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). After the
other relevant calculations were made, for which no claim of error is alleged, a
guidelines imprisonment range of 77 to 96 months was determined.
      The PSR noted that an upward departure could be warranted pursuant to
U.S.S.G. § 4A1.3(a) if the district court determined that Vargas-Soto’s criminal
history category substantially under-represented the seriousness of his criminal
history and the likelihood of recidivism; the PSR identified the lack of deterrence
of past sentences of imprisonment and continued criminal activity. The district
court overruled Vargas-Soto’s objection that an above-guidelines sentence would
be greater than necessary to achieve the sentencing goals of Section 3553(a) and
sentenced Vargas-Soto to 180 months imprisonment and 3 years of supervised
release. Vargas-Soto timely appealed.
      Vargas-Soto argues the district court’s adoption of a 16-level enhancement
for his manslaughter conviction, a conviction that the district court treated as
an aggravated felony, constituted plain error. Additionally, Vargas-Soto argues
the sentence imposed by the district court is unreasonable and the district court
abused its discretion in upwardly departing from the guidelines range for the
crime of illegal reentry.
                                 DISCUSSION
      When a defendant fails to preserve an error by specific objection in the
trial court, an appellate court reviews the district court’s legal conclusions for
plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). Plain error
review requires the defendant to demonstrate that (1) the district court erred,
(2) the nature of the error was plain or obvious, and (3) the defendant suffered
substantial prejudice. Id. If the court resolves these factors in the defendant’s
favor, the court can correct the error “only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings” or “in order to



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prevent a manifest miscarriage of justice.” Id. (internal quotations omitted);
United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012).
        A defendant need not show that the specific factual and legal scenario has
been addressed but must at least show error in the “straightforward applications
of case law.” United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009). By
contrast, an error is not plain if it requires the extension of precedent. United
States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010).
A.      Aggravated Felony Enhancement
        Vargas-Soto revealed his understanding that the maximum penalty for the
crime of illegal reentry is 20 years by signing a factual resume and by
statements at his plea colloquy. The statutory maximum applies if a defendant
was convicted of an aggravated felony, whereas a 10-year maximum applies for
a conviction of a non-aggravated felony. 8 U.S.C. § 1326(b)(1)-(2). If Vargas-Soto
was convicted of an aggravated felony, the district court’s sentence of 15 years
imprisonment is valid.
        Under 8 U.S.C. § 1101(a)(43)(F), an “aggravated felony” includes a “crime
of violence” defined in 18 U.S.C. § 16 as
        (a) an offense that has as an element the use, attempted use, or
        threatened use of physical force against the person or property of
        another, or

        (b) any other offense that is a felony and that, by its nature, involves
        a substantial risk that physical force against the person or property
        of another may be used in the course of committing the offense.

        Vargas-Soto argues that the Texas manslaughter statute does not require
a defendant use, attempt to use, or threaten to use physical force, making
Section 16(a) inapplicable. See United States v. Gracia-Cantu, 302 F.3d 308, 311
(5th Cir. 2002). He also argues Section 16(b) requires a substantial likelihood
that a defendant will intentionally use force against another to commit the


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crime, as opposed to just a reckless use of force as in a manslaughter offense.
See United States v. Chapa-Garza, 243 F.3d 921, 927 (5th Cir. 2001). The State
does not argue that Section 16(a) is applicable, but it does present an argument
as to why Section 16(b) is applicable.
      It is not necessary for us to resolve the dispute. Error that is plain will not
require reversal unless the defendant’s substantial rights were affected. We
must be shown “a probability sufficient to undermine confidence in the outcome”
that but for the erroneous categorization of manslaughter as a crime of violence,
Vargas-Soto would have received a lesser sentence. United States v. Infante, 404
F.3d 376, 395 (5th Cir. 2005). That probability does not exist here because
Vargas-Soto was also convicted of another crime arising out of the same incident,
that is an aggravated felony: evading arrest using a motor vehicle.
      Neither the PSR nor the district court specifically relied on the evading-
arrest conviction.   To evaluate that offense, we granted the government’s
unopposed motion to supplement the record with the state-court records that are
appropriate for us to consider: the charging instrument, judicial confession, and
judgment relating to the conviction. See United States v. Martinez-Vega, 471
F.3d 559, 561 (5th Cir. 2006). These documents support that the offense was
evading arrest by use of a motor vehicle. Although no Texas statute of conviction
was cited, the elements of the offense set out in the indictment are the same as
those under Tex. Penal Code Ann. § 38.04(b)(1). We recently held that a
conviction under Section 38.04(b)(1) is a crime of violence under 18 U.S.C. §
16(b), and therefore an aggravated felony. United States v. Sanchez–Ledezma,
630 F.3d 447, 451 (5th Cir. 2011), cert. denied, 131 S. Ct. 3024 (2011).
      We have permitted supplementation of the record when the district court
determined that a prior state conviction met a Sentencing Guidelines category
for an enhancement but the record did not contain the necessary state-court
documents to support that finding. United States v. Garcia-Arellano, 522 F.3d

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477, 480 (5th Cir. 2008). There, we supplemented the record to determine
whether a prior conviction was for a drug-trafficking offense that would allow a
12-level enhancement under Section 2L1.2 of the Guidelines; the district court
had relied solely on the PSR. Id. at 479-80.
      It is true that in the present case, the supplemental documents explain an
entirely different offense than the one on which the district court relied. The
offense, though, was listed in the PSR. We conclude that supplementation for
this purpose is an appropriate application of the caselaw. To explain, we start
with the principle that we may examine state-court documents to support an
enhancement even when it appears the district court did not examine them.
Martinez-Vega, 471 F. 3d at 561. We next note that we conduct de novo review
of the applicability of an enhancement under the Sentencing Guidelines. United
States v. Girod, 646 F.3d 304, 317 (5th Cir. 2011). Thus we always examine
these state-court records to make our own determination of whether they
support an enhancement. In this case, the records we are examining concern a
prior offense the district court could have relied upon to support the sentencing
enhancement that was given.
      We are not interfering with the district court’s broad discretion over
sentencing. The district court gave Vargas-Soto a sentencing enhancement for
having committed an aggravated felony. At the hearing, the court entered into
the record, as Court’s Exhibit 1, a copy of the police report underlying the crime
of evading arrest, which also supported one count of manslaughter, one count of
intoxicated assault, and two counts of failing to stop and render aid. Neither
party had offered that document. The court noted that Vargas-Soto “sped off
with headlights off . . . at a high rate of speed approaching 80 to 100 miles per
hour,” and chastised Vargas-Soto for attempting “to drive off and try to escape.”
The court characterized these facts as “reprehensible behavior, and my sentence
will take account of that.” We are convinced that the aggravated felony of

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evading arrest, listed in the PSR and discussed by the district court, may
properly be used as an alternative basis for the enhancement.
        In summary, even if categorizing Vargas-Soto’s manslaughter conviction
as a crime of violence were plain error, there was no substantial harm because
his separate conviction for evading arrest would have been sufficient to support
the same 16-level sentencing enhancement.
B.      Upward Departure
        Vargas-Soto asserts that the district court abused its discretion in
imposing a sentence of 180 months, an upward departure from the guidelines
imprisonment range of 77 to 96 months.
        In accordance with U.S.S.G. § 4A1.3(a)(4)(B) the district court moved
incrementally down the sentencing table and ultimately determined a sentence
of 180 months was “sufficient but not greater than necessary . . . to protect the
public from the defendant and his high risk for recidivism.” The district court
determined Vargas-Soto’s criminal history score under-represented the
seriousness of his criminal history and the likelihood that he would commit
future crimes. The district court pointed to factors including repetitive illegal
entry, lack of deterrence, and continued criminal activity.
        The district court also explained that “this manslaughter conviction plays
a significant role in my thinking as to the need for an upward departure” and
entered into the record the police report of the events underlying the
manslaughter and evading arrest convictions.           The district court noted
particular facts including Vargas-Soto’s intoxication (“rip-roaring drunk”) and
probable lack of headlights in the initial collision. Also mentioned was Vargas-
Soto’s flight from the scene and attempted escape from police, which included
driving off at a speed approaching 80 to 100 miles per hour with his headlights
off. The district court concluded that the foregoing actions were “reprehensible
behavior, and my sentence will take account of that.” The district court also

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noted the “shockingly light sentence” that Vargas-Soto received for
manslaughter.
      It was proper for the court to consider the nature of Vargas-Soto’s criminal
history, including the circumstances of his prior convictions for manslaughter
and evading arrest. 18 U.S.C. § 3553(a); Gall v. United States, 552 U.S. 38, 49-
50 (2007).
      AFFIRMED.




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