                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                                                             March 7, 2006
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-50281



     UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,


                                  v.



     BERNARDO OCHOA-CRUZ, also known as Bernardo Canales, also
     known as Inuc Ochoa-Cruz,

                                          Defendant-Appellant.



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



Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:

     This case concerns the evidence and considerations required

before a district court can make a determination that a defendant

has previously committed a crime of violence to allow a sentencing

enhancement. Bernardo Ochoa-Cruz, the Appellant, pleaded guilty to

an illegal reentry charge and subsequently received a sixteen-level

sentencing enhancement based on previous convictions listed in his

presentencing report (“PSR”).    Ochoa-Cruz argues that the district

court erred by solely relying on the PSR in determining that the
convictions were crimes of violence.1               As explained below, the

district court did err in its reliance on the PSR, but Ochoa-Cruz

has failed to prove that this error affected his substantial

rights.     Accordingly, Ochoa-Cruz has failed to establish the third

component necessary for showing the error complained of for the

first time on appeal is plain error.



                  I.     FACTUAL AND PROCEDURAL BACKGROUND

       Ochoa-Cruz pleaded guilty to illegal reentry under 8 U.S.C.

§   1326(a)(1)     (2000).       The    PSR   recommended   a   sixteen-level

enhancement for prior “crime of violence” convictions.                  See 8

U.S.C. § 1326(b)(2) (2000); U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2004).

At sentencing, the court accepted the PSR’s recommendation and did

not make an independent determination of whether Ochoa-Cruz had

previously committed crimes of violence.            The convictions at issue

both came under Maryland law, one for “assault in the second

degree” and another for “carrying a weapon openly with intent to

injure.”     Ochoa-Cruz did not object to the court’s reliance on the

PSR.       The   court   sentenced     Ochoa-Cruz   to   fifty-seven   months’

imprisonment.      Ochoa-Cruz appealed.




       1
        Ochoa-Cruz is not arguing that the convictions are
nonviolent. Infra Part III.A.3. Similarly, he does not dispute
that he committed the offenses listed in the PSR.

                                         2
                       II.    STANDARD OF REVIEW

     Ochoa-Cruz concedes that plain error review is appropriate,

given that he raises this issue for the first time on appeal.2

Plain error exists when: “(1) there was an error; (2) the error was

clear and obvious; and (3) the error affected the defendant’s

substantial rights.”   United States v. Villegas, 404 F.3d 355, 358

(5th Cir. 2005).    Even if these three conditions are met, an

appellate court may exercise its discretion only if “the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.”       Id. at 358–59.



                             III.   DISCUSSION

A.   Plain Error Review of the Court’s Reliance on the PSR

     1.   There Was an Error

     Under the categorical approach for sentence enhancements, a

court determines the nature of a prior conviction by examining the

statute under which the conviction was attained.     See Taylor v.

United States, 495 U.S. 575, 602 (1990); see also Shepard v. United

States, 544 U.S. 13, __, 125 S. Ct. 1254, 1257 (2005) (holding that

for a guilty plea conviction, review is “limited to examining the



     2
      Contrary to the government’s assertions, Ochoa-Cruz did
not waive the argument. Waiver is defined as the “intentional
relinquishment or abandonment of a known right.” United States
v. Olano, 507 U.S. 725, 732 (1993). There is no evidence that
Ochoa-Cruz intentionally relinquished his right to challenge the
district court’s sole reliance on the PSR.

                                     3
statutory definition, charging document, written plea agreement,

transcript of the plea colloquy, and any explicit factual finding

by the trial judge to which the defendant assented”).                  Neither

Taylor nor Shepard permits a district court to enhance a sentence

based solely on the type of PSR here, a mere characterization that

the offenses were crimes of violence.          This naturally follows the

reasoning of the categorical approach, which calls upon courts to

look at the statutes at issue rather than the specific acts of the

defendant.      Here, the district court failed to make the necessary

inquiry.      Therefore, the court erred.

      2.     The Error Was Clear and Obvious

      Relying on the PSR alone was clearly and obviously erroneous,

as doing so conflicted with both Taylor and Shepard as well as the

underlying themes of the categorical approach.              See United States

v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (specifically

directing courts to analyze the statutory definition of an offense

when determining whether it is a crime of violence).

      3.     The Error Did Not Affect Ochoa-Cruz’s Substantial Rights

      To show that the error affected his substantial rights, Ochoa-

Cruz must show a reasonable probability that, but for the error, he

would have received a lesser sentence.             Villegas, 404 F.3d at 364.

He   bears    the   burden   of   proving   that    the   error   affected   his

substantial rights.          United States v. Olano, 507 U.S. 725, 734

(1993).      Ochoa-Cruz does not satisfy this burden.


                                       4
     Ochoa-Cruz   fails    to   argue      that       his   convictions       do   not

constitute crimes of violence.        Indeed, he explicitly states that

he “does not assert that . . . the listed convictions are not the

kind that could be used to support the enhancement.”                    Without at

least arguing that the crime of violence enhancement was ultimately

wrong, Ochoa-Cruz cannot show that he would have received a lesser

sentence.

     Instead of addressing the underlying nature of the offenses,

Ochoa-Cruz   imagines    “scenarios”      under       which    the   sixteen-level

enhancement vanishes, leaving him with shorter sentences. In doing

so, he assumes, without even attempting to prove, that the Maryland

offenses are not violent crimes.          As Ochoa-Cruz has failed to make

the argument, we need not determine whether the statutes at issue

define nonviolent felonies.         Cf. United States v. Lynch, 145

F.App’x. 482, 485 (5th Cir. 2005) (unpublished) (determining that

the statute at issue defined a violent felony when defendant

claimed it did not).

B.   Ochoa-Cruz’s Constitutional Argument

     Ochoa-Cruz   also     argues   that        his    sentence      violated      his

constitutional    rights    because       the     court       treated   the    prior

convictions as sentencing factors rather than elements of the

offense that must be found by a jury.            See Apprendi v. New Jersey,

530 U.S. 466 (2000).         He acknowledges that this argument is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224


                                      5
(1998).   As we are bound by Almendarez-Torres, we find that there

was no constitutional violation. See United States v. Garza-Lopez,

410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).



                          IV.   CONCLUSION

     Ochoa-Cruz failed to prove that the court’s reliance on the

PSR alone affected his substantial rights.   Ochoa-Cruz has not met

his burden, as he failed to claim, much less show, that absent the

error a reasonable probability existed that he would have received

a lesser sentence.   In addition, his constitutional argument is

barred by Supreme Court and Fifth Circuit precedent.     For these

reasons, the sentence is AFFIRMED.




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