     Case: 16-40352      Document: 00513980291         Page: 1    Date Filed: 05/04/2017




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

                                      No. 16-40352
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 4, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

ABRAHAM HERNANDEZ-ZAVALA,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 2:15-CR-883-1


Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON:*
       Abraham Hernandez-Zavala appeals his sentence imposed following his
guilty plea for illegally reentering the United States. He argues that the
district court erred in enhancing his sentence based on a prior conviction and
deportation and in determining his criminal history score. Additionally, he
contends that the district court violated his due process and equal protection
rights. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40352
                                         I
      Hernandez-Zavala      was    charged   with   illegal     reentry    following
deportation in violation of 8 U.S.C. § 1326(a) & (b). The one-count indictment
did not allege a specific date of deportation and did not allege that Hernandez-
Zavala was deported after a felony or an aggravated felony conviction.
Hernandez-Zavala pleaded guilty to the indictment before a magistrate judge
pursuant to a plea agreement.
      At the plea hearing, the Government provided the following factual basis
for the plea:
      [T]he Defendant, Abraham Hernandez-Zavala, was encountered
      by law enforcement in Claiborne County on September 13th, 2015.
      He is a citizen and national of Mexico with no legal right to remain
      or enter into the United States. He was ordered removed from the
      United States by an immigration judge on March 13th, 2006, and
      was physically removed March 18th, 2006. His most recent
      removal was September 13th of 2015. At this time, there is no
      evidence to suggest that he had received permission from the
      Attorney General or the Secretary of the Department of Homeland
      Security to enter into the United States.

When asked by the court whether that information was correct, Hernandez-
Zavala replied affirmatively. The magistrate judge confirmed that Hernandez-
Zavala was pleading guilty and told the parties that he would recommend that
the district court accept the guilty plea.
      Approximately five minutes after conclusion of the plea hearing, the
magistrate judge recalled Hernandez-Zavala’s case. The magistrate judge
noted his confusion concerning the most recent date on which Hernandez-
Zavala was deported because the date stated by the Government in the factual
basis, September 13, 2015, was the same as the date on which the Government
alleged Hernandez-Zavala was found in the United States. The Government
then provided a corrected date for the most recent deportation of July 28, 2014.
Hernandez-Zavala confirmed that July 28, 2014 was the correct date and
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                                       No. 16-40352
restated his plea of guilty. Neither party filed objections to the magistrate
judge’s report and recommendation, and the district court accepted
Hernandez-Zavala’s plea of guilty.
       Over one month later, the Government filed an “Agreed Motion to Amend
Plea Colloquy,” which stated that the corrected July 28, 2014 deportation date
was also inaccurate and that the most recent date of deportation was in fact
May 28, 2015. The Government asked the court to amend the plea colloquy
based on the assertion that the erroneous date was an error arising from
oversight, citing Rule 36 of the Federal Rules of Criminal Procedure. 1 The
Government later filed an amended motion attaching a Form I-205 “Warrant
of Removal/Deportation” that documented Hernandez-Zavala’s removal from
the United States on May 28, 2015. The record does not reflect that the district
court ruled on either motion.
       The initial presentence report (PSR) stated that Hernandez-Zavala had
been deported from the United States to Mexico on May 10, 1997; March 18,
2006; November 10, 2007; June 10, 2011; and May 28, 2015. The PSR noted
that the 2011 and 2015 deportations occurred after Hernandez-Zavala was
convicted of drug trafficking offenses in 2008 and 2009, and accordingly added
16 levels to his base offense level of 8. See U.S.S.G. § 2L1.2(a) & (b)(1)(A). After
subtracting 3 levels for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1, the PSR calculated a total offense level of 21. This total offense level,
combined with Hernandez-Zavala’s criminal history category of VI, yielded a
recommended         guidelines     sentencing       range     of   77    to    96    months.
Notwithstanding this guidelines range, the PSR determined that Hernandez-
Zavala was subject to the 2-year statutory maximum under § 1326(a) because


       1Rule 36 provides: “After giving any notice it considers appropriate, the court may at
any time correct a clerical error in a judgment, order, or other part of the record, or correct
an error in the record arising from oversight or omission.”
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                                 No. 16-40352
the Government had provided incorrect deportation dates at the defendant’s
plea.
        The Government objected to the PSR, arguing that because Hernandez-
Zavala had been deported after an aggravated felony conviction, his statutory
maximum sentence should be 20 years under § 1326(b). The Government
attached to its objections the Form I-205 warrant of removal/deportation that
documented the May 28, 2015 deportation date. Hernandez-Zavala responded
that the Government’s position contradicted United States v. Rojas-Luna, 522
F.3d 502 (5th Cir. 2008), and that the 2-year statutory maximum under
§ 1326(a) applied. Hernandez-Zavala also stated that he remained silent and
made no admission as to removal dates alleged in the PSR and in the filings
by the Government; that he made no comment on the accuracy of the PSR; and
that he was opposed to the Government’s motion to amend the plea colloquy.
        At the sentencing hearing, the Government reurged its objection to the
PSR’s application of the 2-year statutory maximum. Hernandez-Zavala asked
for more time to obtain the trial transcript for his 2009 assault and coercion
convictions, which impacted his criminal history score, so the district court
could “better understand[]” the circumstances surrounding these offenses. The
district court granted a continuance.
        At the continued sentencing hearing, the Government argued that the
court should apply the 20-year statutory maximum under § 1326(b) because
the deportation date Hernandez-Zavala admitted to at his plea (July 28, 2014)
occurred after his 2009 convictions for assault and coercion. Hernandez-Zavala
contended that the district court could not rely on a factually incorrect date to
increase the statutory maximum. Over objection from defense counsel, the
district court gave Hernandez-Zavala two options: to proceed with sentencing
or to withdraw his plea. After discussing his options with counsel, Hernandez-
Zavala agreed to proceed with sentencing, but he maintained his objection to
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                                      No. 16-40352
using the corrected deportation date to apply the 20-year statutory maximum.
He argued that the Government had not met its burden to “prove up the
elements of the offense” at the plea and that the district court was giving the
Government “two bites at the apple.”
       Although Hernandez-Zavala repeatedly professed his desire to remain
silent at sentencing with respect to the date of his last deportation, he
confirmed upon questioning by the district court that it was his signature on
the Form I-205 introduced by the Government. Ultimately, the district court
determined that the 20-year statutory maximum was applicable.
       Before the district court announced his sentence, Hernandez-Zavala
again stated that he wanted to clarify the facts surrounding his coercion and
assault convictions. Hernandez-Zavala attempted to play an audio CD of the
stipulated facts for the convictions, but the tape was inaudible. He then stated
that he wanted the district court to know that the victim was not “completely
innocent” in that case because she stole money from him, faked her own
kidnapping, and forged a deed to their home. The district court found that it
did not have “the whole truth” because it did not have the state court document
that contained the stipulated facts for the convictions. The district court
sentenced Hernandez-Zavala to 83 months in prison, and Hernandez-Zavala
timely appealed. On appeal, he is proceeding pro se. 2
                                             II
       A defendant convicted of illegal reentry under 8 U.S.C. § 1326(a) is
generally subject to a statutory maximum sentence of 2 years’ imprisonment.
However, the penalty provisions of § 1326 provide a 20-year maximum for a




       2Because Hernandez-Zavala is pro se, we “liberally construe[]” his briefs. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
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                                  No. 16-40352
defendant whose prior removal followed a conviction for an aggravated felony.
8 U.S.C. § 1326(b)(2).
      “Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). A defendant’s prior conviction used to enhance
the sentence under § 1326(b)(2) is a sentencing factor that need not be
described in the indictment. Almendarez-Torres v. United States, 523 U.S. 224,
226–27 (1998). The fact of a prior removal, however, must be proven to a jury
or admitted by the defendant as part of a guilty plea. Rojas-Luna, 522 F.3d at
506 & n.2; see also United States v. Pando-De Madrid, 442 F. App’x 119, 121
(5th Cir. 2011) (unpublished).
      Hernandez-Zavala argues that the district court committed Apprendi
error, as articulated in Rojas-Luna, 522 F.3d at 505–06, by applying the 20-
year statutory maximum pursuant to § 1326(b). This court reviews de novo
whether the sentence imposed by the district court exceeded the statutory
maximum dictated by the conviction in violation of Apprendi. See United States
v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000) (finding that the de novo standard
of review applied to a preserved objection pursuant to Apprendi). Apprendi
errors are subject to harmless error analysis. United States v. Roussel, 705 F.3d
184, 201 (5th Cir. 2013) (citing United States v. Matthews, 312 F.3d 652, 661,
665 (5th Cir. 2002)).
      We need not determine whether the district court committed Apprendi
error because any error would be harmless. See Matthews, 312 F.3d at 665. The
proper remedy for an Apprendi error is remand to the district court for
resentencing with a statutory maximum based on facts admitted at the guilty
plea or proven to a jury. See, e.g., Rojas-Luna, 522 F.3d at 507. Thus, on
remand, the district court would have only the deportation date admitted to by
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                                       No. 16-40352
Hernandez-Zavala at his plea. Here, however, Hernandez-Zavala admitted to
a deportation date sufficient to support imposition of the 20-year statutory
maximum. The admitted-to date—July 28, 2014—also occurred after his 2008
and 2009 aggravated felony convictions. Accordingly, Hernandez-Zavala would
have been subject to the 20-year maximum penalty based on his admitted-to
factual basis, and any district court error did not affect the outcome of the
proceedings. See, e.g., United States v. Mejia-Huerta, 480 F.3d 713, 720 (5th
Cir. 2007) (“A sentencing error will be considered harmless if the government
can establish beyond a reasonable doubt that the district court would have
imposed the same sentence absent the error.”).
       Moreover, any error based on an inaccuracy admitted to by Hernandez-
Zavala would also be harmless. 3 See United States v. Adams, 961 F.2d 505,
510–513 (5th Cir. 1992) (applying harmless error analysis to district court’s
failure to determine a sufficient factual basis for the plea). The deportation
warrant signed by Hernandez-Zavala is uncontroverted evidence of a prior
deportation on May 28, 2015, well after his 2008 and 2009 aggravated felony
convictions. Thus, “upon examination of the entire record in this case, . . . [any]
failure of the district court to establish adequately that a factual basis existed
for [Hernandez-Zavala’s] plea [would] not affect [his] substantial rights,
because the record as a whole reveals that [his] actions satisfied the elements”
necessary to apply the 20-year statutory maximum under § 1326(b). Id. at 512–
13.
       Further, there is nothing in the record indicating that Hernandez-Zavala
would have changed his plea if the Government had supplied the correct


       3 This argument is also waived. Although we liberally construe pro se filings, Erckson,
551 U.S. at 94, even pro se litigants must brief arguments in order to preserve them. Yohey
v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Hernandez-Zavala does not brief any
argument that the district court could not rely on his admission of the July 28, 2014 date in
applying the 20-year statutory maximum.
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                                         No. 16-40352
deportation date of May 28, 2015 as part of the factual basis. See United States
v. Pena, 720 F.3d 561, 573 (5th Cir. 2013) (“[A] defendant who seeks reversal
of his conviction after a guilty plea, on the ground that the district court
committed plain error under Rule 11, must show a reasonable probability that,
but for the error, he would not have entered the plea.” (quoting United States
v. Dominguez Benitez, 542 U.S. 74, 83 (2004))). The indictment to which
Hernandez-Zavala pleaded guilty charged him with violating § 1326(a) and (b).
At the plea hearing, the district court advised Hernandez-Zavala that he faced
a 20-year statutory maximum pursuant to § 1326(b). Hernandez-Zavala
initially confirmed the accuracy of a factual basis that included September 13,
2015, as the date of his most recent deportation. After recalling the case, the
magistrate judge specifically asked Hernandez-Zavala to confirm that July 28,
2014, was the date of his most recent deportation. Hernandez-Zavala
confirmed the accuracy of that date and restated his plea of guilty. Thus,
Hernandez-Zavala was aware that he faced the possibility of a 20-year
maximum sentence under § 1326(b), and there is nothing in the record
suggesting he would have changed his plea had the Government provided the
correct deportation date at his plea hearing. 4




       4  Citing Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir. 1996),
Hernandez-Zavala argues that the Government waived any objection to the deportation date
contained in the magistrate judge’s report because it failed to timely object to the report and
recommendation. This argument also fails. In Douglass, this court held “that failure to object
timely to a magistrate judge’s report and recommendation bars a party, except upon grounds
of plain error . . . from attacking on appeal . . . the proposed factual findings . . . provided that
the party has been served with notice that such consequences will result from a failure to
object.” Id. at 1417; see also United States v. Young, 585 F.3d 199, 202 (5th Cir. 2009) (noting
that when a party fails to object to a magistrate judge’s report, the court normally reviews
any claim on appeal for plain error). Douglass did not, however, state that any un-objected-
to error in the magistrate judge’s report is waived for correction at sentencing, and thus it is
inapposite.
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                                       III
      Hernandez-Zavala next argues that the Government committed fraud on
the court. Specifically, he argues that, contrary to the Government’s
statements in its motions to amend, he never agreed to amend the plea colloquy
to reflect the correct deportation date. Because Hernandez-Zavala raises this
argument for the first time on appeal, we review for plain error. Puckett v.
United States, 556 U.S. 129, 134–35 (2009).
      There is no indication that the Government engaged in egregious
misconduct constituting fraud on the court. See Fierro v. Johnson, 197 F.3d
147, 154 (5th Cir. 1999) (“[O]nly the most egregious misconduct, such as
bribery of a judge or members of a jury, or the fabrication of evidence by a party
in which an attorney is implicated, will constitute a fraud on the court.”). Even
if Hernandez-Zavala didn’t “agree” to amend the plea colloquy (contrary to the
title of the Government’s motion), he did agree that the date in the factual
basis was incorrect. The district court also knew he opposed the motion because
he argued it was procedurally improper and asked the court to deny it.
Furthermore, there is no indication in the record that the district court ever
ruled on the Government’s motions to amend. Accordingly, Hernandez-Zavala
has failed to show plain error.
                                       IV
      Next, Hernandez-Zavala argues that the district court’s misconduct
violated his due process and equal protection rights, and that the district court
judge should be recused from any remand of this matter because of his “bias
and prejudice.” Even liberally construed, Hernandez-Zavala’s brief is devoid of
any legal citation to support his arguments that the comments, actions, and
rulings of the district court violated his due process and equal protection rights
and demonstrated the district court’s bias. See Grant v. Cuellar, 59 F.3d 523,
524 (5th Cir. 1995) (per curiam).
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                                   No. 16-40352
                                        V
      Hernandez-Zavala also raises various claims concerning the prior
offenses used to calculate his offense level and criminal history score. He did
not raise these claims before the district court, and thus we review each for
plain error. None is persuasive.
      Hernandez-Zavala argues that the 16-level enhancement pursuant to
§ 2L1.2(b)(1)(A)(i) was improper because, in light of Johnson v. United States,
135 S. Ct. 2551 (2015), his prior conviction does not constitute an “aggravated
felony.” But Hernandez-Zavala’s § 2L1.2(b)(1)(A) enhancement was based on
his conviction for a “drug trafficking offense,” not an aggravated felony, and
Johnson is inapplicable.
      Hernandez-Zavala contends that his 2008 Oregon state convictions for
cockfighting, various controlled substance offenses, and criminal forfeiture
should not have been counted toward his criminal history score because he was
not represented by counsel. A defendant may collaterally attack a prior
conviction used for sentencing purposes if the prior conviction was obtained in
violation of his constitutional right to counsel. Custis v. United States, 511 U.S.
485, 487, 496 (1994). State law determines the appropriate allocation of the
burden of proof for such a collateral attack. Mallard v. Cain, 515 F.3d 379, 382
(5th Cir. 2008); see also Iowa v. Tovar, 541 U.S. 77, 92 (2004) (citing applicable
state law in allocating burden of proof for collateral attack on state conviction).
In Oregon, judgments carry a “presumption of regularity,” and the defendant
must prove that he “did not competently and intelligently waive his
constitutional right to assistance of [c]ounsel.” Schram v. Gladden, 444 P.2d 6,
7 (Or. 1968) (en banc) (quoting Johnson v. Zerbst, 304 U.S. 458, 468 (1938));
see also State v. Probst, 124 P.3d 1237, 1246 (Or. 2005) (en banc). The amended
PSR notes that Hernandez-Zavala “was not represented by counsel and
entered a plea of nolo contendere” in connection with his 2009 Oregon state
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                                  No. 16-40352
convictions. Hernandez-Zavala did not argue or offer any evidence before the
district court that he “did not competently and intelligently waive” his right to
counsel. See Schram, 444 P.2d at 7. Given the “presumption of regularity”
afforded to Oregon state court judgments, see Probst, 124 P.3d at 1246, the
district court did not plainly err in counting Hernandez-Zavala’s 2008
convictions toward his criminal history score. See Puckett, 556 U.S. at 135.
      Hernandez-Zavala also argues that his 2009 convictions for various
controlled substance offenses, possession of a forged instrument, identity theft,
and cockfighting should not have been counted toward his criminal history
score because the Government failed to produce the amended judgment for
those convictions. Contrary to Hernandez-Zavala’s assertion, the amended
judgment was produced by the probation officer. Moreover, a PSR generally
bears sufficient indicia of reliability to be considered as evidence by the
sentencing judge in making factual determinations. United States v. Zuniga,
720 F.3d 587, 591 (5th Cir. 2013). Hernandez-Zavala presented no evidence to
rebut the description of the criminal convictions in the PSR, and thus the
district court did not err in relying on it. See id.; see also United States v.
Jackson, 136 F. App’x 672, 673 (5th Cir. 2005) (unpublished) (rejecting similar
challenge to use of prior convictions).
      Similarly, Hernandez-Zavala contends that the district court erred by
relying on the PSR’s description of his 2009 convictions for coercion and assault
in calculating his criminal history score. However, the audio tape Hernandez-
Zavala submitted from the state court record was inaudible, and the district
court noted that Hernandez-Zavala did not produce the state court document
outlining the stipulated facts for the convictions. Hernandez-Zavala therefore
failed to rebut the information in the PSR and the district court’s reliance on
that information was not clear or obvious error. See Zuniga, 720 F.3d at 591;
see also Puckett, 556 U.S. at 135. Further, the probation officer did not err in
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failing to redact references to the knife from the PSR. Notably, the probation
officer amended the PSR to reflect Hernandez-Zavala’s statement that he did
not use a knife in the offense. 5
                                             VI
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       5 To the extent Hernandez-Zavala raises an ineffective assistance of counsel claim by
complaining of counsel’s failure to obtain additional state court records to prove he did not
have a knife, we decline to consider it, without prejudice to collateral review. See United
States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
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