     Case: 09-50673     Document: 00511131053          Page: 1    Date Filed: 06/03/2010




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

                                                  FILED
                                                                            June 3, 2010
                                     No. 09-50673
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDWIN JOSE ESCOBAR-ORTEZ, also known as Jose Carlos Rodriguez,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:09-CR-995-1


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Edwin Jose Escobar-Ortez (Escobar) pleaded guilty to illegal reentry
following deportation. Because Escobar had been convicted of a crime of violence
- robbery in Texas - prior to deportation, the presentence report recommended
increasing his offense level by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
        At sentencing, Escobar argued that although the Government submitted
the judgment and the indictment regarding his robbery conviction in Texas,
those documents were not sufficient to prove that Escobar had committed

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50673

robbery.   Specifically, Escobar argued that although he was charged with
aggravated robbery, he pleaded guilty to a lesser charge. In support of this
argument, Escobar relied on the state court judgement. Typed on the judgment,
which is a preprinted form, is the statement that Escobar was charged with
“aggravated robbery, a 1st degree felony offense as charged in the indictment.”
Preprinted next on the judgment is the statement that “the State having filed
[a] written Motion to reduce the offense charged to the lesser and included
misdemeanor offense of:” followed by the typed statement “robbery a 2nd degree
felony offense as charged in the indictment.” Escobar argued that because the
preprinted term “lesser and included misdemeanor offense” conflicts with the
typed term “robbery a 2nd degree felony,” the Government had not proven that
he committed a robbery. The district court overruled Escobar’s objection and
determined that Escobar’s guidelines range was 37 to 46 months in prison. The
court sentenced Escobar to 37 months in prison and to three years of supervised
release.
      Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in § 3553(a).
United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38, 51 (2007), this court engages in a bifurcated
analysis of the sentence imposed by the district court. United States v. Delgado-
Martinez, 564 F.3d 750, 752 (5th Cir. 2009). The court first examines whether
the district court committed any procedural errors, “such as failing to calculate
(or improperly calculating) the Guidelines range . . . .”Gall, 552 U.S. at 51. If
there is no such error or the error is harmless, the reviewing court may proceed
to the second step and consider the substantive reasonableness of the sentence.
See Delgado-Martinez, 564 F.3d at 751-53.
      Escobar argues here that the Government did not carry its burden of
proving that he had been convicted of robbery. Escobar reasons that based on
the contradictions in the judgment cited above, he was convicted of either a

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                                   No. 09-50673

lesser included misdemeanor offense or a 2nd degree felony robbery. Escobar
argues that in Texas, theft is a lesser included offense of robbery, and based on
the facts of his offense, his conviction could have been for a Class B misdemeanor
theft offense. Escobar concedes that Texas robbery is a “crime of violence” under
the Guidelines based on United States v. Santiesteban-Hernandez, 469 F.3d 376,
378 (5th Cir. 2006).
      The Government responds that the facts alleged in the indictment, that
Escobar cut and stabbed his victim with a broken bottle in the course of
committing theft of his victim’s cash, tracks the language of the Texas robbery
offense. The Government also responds that the manually-entered information
on the judgment establishes that Escobar was convicted of robbery and that that
information controls over the printed information.
      This court reviews the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The Government bears
the burden of proving by a preponderance of the relevant and reliable evidence
the facts supporting a sentencing enhancement, including prior convictions.
United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008).
      Because the typed portion of the judgment conflicts with the preprinted
portion of the judgment, we find that the typed portion of the judgment controls.
See THE ADDISON E. BULLARD, 258 F. 180, 182 (5th Cir. 1919); see also
Thomas v. Taggart, 209 U.S. 385, 389 (1908). The typed portion of the judgment
provides that Escobar pleaded guilty to “robbery a 2nd degree felony offense as
charged in the indictment.” Texas robbery is characterized as a crime of violence
for the purposes of a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii).
Santiesteban-Hernandez, 469 F.3d at 381.
      Moreover, the charges in the indictment analyzed in light of the offenses
of robbery by bodily injury and simple theft show that Escobar could not have
pleaded guilty to the lesser included offense of simple theft. Initially, what

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                                 No. 09-50673

constitutes a lesser included offense in Texas is defined by statute, and that
definition applies to guilty pleas and to trials. See Murray v. State, 302 S.W.3d
874, 877 (Tex. Crim. App. 2009); T EX. C ODE C RIM P. art. 37.09.
      The theory set forth in the indictment indicates that Escobar committed
theft by inflicting bodily injury by stabbing and cutting the victim with a broken
bottle. These facts could constitute robbery by bodily injury. See Castillo v.
State, 944 S.W.2d 440, 442 (Tex. App. 1997). However, they could not constitute
simple theft. See T EX. P ENAL C ODE § 31.03; Bignall v. State, 887 S.W.2d 21, 23
(Tex. Crim. App. 1994). In Bignall, the court stated that “if any evidence exists
in the record that would permit a rational jury to find that a deadly weapon was
not used or exhibited, Appellant is entitled to an instruction on theft.” Id. at 23.
Because Escobar pleaded guilty “as charged in the indictment,” he admitted to
cutting and stabbing his victim with a broken bottle, which negates any
argument that he could have pleaded guilty to the lesser included offense of
simple theft. Id.
      Thus, the district court did not err by finding that the Government proved
that Escobar had been convicted of robbery, a crime of violence, prior to
deportation and that a 16-level enhancement to his base offense level was
warranted. The district court’s decision is AFFIRMED.




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