    Case: 14-40889         Document: 00513397853          Page: 1     Date Filed: 02/26/2016




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

                                        No. 14-40889
                                                                                       Fifth Circuit

                                                                                      FILED
                                                                              February 26, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                    Plaintiff–Appellee,

versus

JUAN CARLOS ORTEGA-CALDERON,

                                                    Defendant–Appellant.




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




Before JONES and SMITH, Circuit Judges, and BOYLE, District Judge.*
JANE J. BOYLE, District Judge:

      Juan Carlos Ortega-Calderon appeals his sentence, arguing that the
district court erred by relying on a docket sheet and a Disposition of Arrest and
Court Action to impose a sentencing enhancement under U.S.S.G. § 2L1.2.
Because the evidence bears “sufficient indicia of reliability,” we affirm.




      *   District Judge of the Northern District of Texas, sitting by designation.
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                                 No. 14-40889
                                       I.

      In March 2014, a federal grand jury indicted Defendant-Appellant Juan
Carlos Ortega-Calderon for unlawful presence in the United States after
previous deportation, in violation of 8 U.S.C. § 1326(a)–(b). Without the benefit
of a plea agreement, Ortega-Calderon pleaded guilty to the sole count of the
indictment.

      The probation office’s presentence report (PSR) recommended, inter alia,
a twelve-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on a
2003 California felony conviction for assault with a deadly weapon. Ortega-
Calderon objected to this proposed enhancement and requested that the
probation office produce a charging instrument, judgment, and any other
documents relevant to the 2003 conviction. The probation office did not produce
the charging instrument or a judgment, but it did attach two documents as an
addendum to the PSR: a “Disposition of Arrest and Court Action” and a twenty-
page docket sheet, both of which indicated that, in 2003, an individual named
Juan Ortega Calderon pleaded nolo contendere to violating Cal. Penal Code
§ 245(a)(1) (assault with a deadly weapon) and was convicted.

      At sentencing, Ortega-Calderon again objected to the enhancement,
insinuating that these two documents were not sufficiently reliable to justify
the enhancement. He nonetheless conceded that the information contained in
the PSR was accurate. After a colloquy with the probation officer regarding the
documents, the district court found that they proved the existence of the 2003
conviction by a preponderance of the evidence, and the court applied the
twelve-level enhancement. All told, Ortega-Calderon was sentenced to thirty
months’ imprisonment. This appeal followed.



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                                  No. 14-40889
                                        II.

      At the outset, we must determine what standard of review applies in this
case. The parties disagree on this point. Ortega-Calderon proposes that we
review the district court’s reliability determination de novo, while the
Government suggests a clear error standard. Finding that our precedents do
not plainly answer this question, we hold that a district court’s conclusion that
evidence submitted to prove the fact of a prior conviction bears “sufficient
indicia of reliability,” U.S.S.G. § 6A1.3(a), is reviewed for clear error.

      To support his position, Ortega-Calderon relies on United States v.
Martinez-Cortez, 988 F.2d 1408 (5th Cir. 1993), which states that “whether
prior convictions have been proved sufficiently for purposes of sentence
enhancement is a question of law; thus, review is de novo.” Id. at 1410, 1415.
At first blush, this language appears to favor Ortega-Calderon. Martinez-
Cortez, however, involved a very different question: whether the evidence used
to prove the defendant’s prior state burglary conviction passed muster under
Taylor v. United States, 495 U.S. 575 (1990).

      In Taylor, the Supreme Court addressed a sentencing enhancement
under 18 U.S.C. § 924(e)(1), which applies when a defendant “has three
previous convictions by any court . . . for a violent felony or a serious drug
offense, or both.” “Violent felony” includes burglary, but the statute does not
define the latter term. 18 U.S.C. § 924(e)(2)(B)(ii). Noting that the elements of
burglary varied by state, the Court first defined “generic burglary” as relevant
for sentencing enhancements under § 924(e); it then concluded that a state
burglary conviction would justify the enhancement “if either its statutory
definition substantially corresponds to ‘generic’ burglary, or the charging
paper and jury instructions actually required the jury to find all the elements

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                                       No. 14-40889
of generic burglary in order to convict the defendant.” Taylor, 495 U.S. at 599–
602. A Taylor inquiry, then, turns on the legal question of whether a
defendant’s state conviction qualifies as a “generic burglary,” which is
amenable to de novo review.

       Martinez-Cortez itself supports this conclusion. There, a panel of this
Court considered whether the Government’s proof of the defendant’s burglary
conviction    comported       with    Taylor’s    requirements—namely,            that    the
Government either introduce “(1) the fact of the prior conviction (presumably
by introducing a certified or validated copy of the judgment) and (2) a true copy
of the state statute under which the conviction was attained,” or show that the
elements of defendant’s conviction matched those of “generic burglary.”
Martinez-Cortez, 988 F.2d at 1411–12. Thus, this Court was reviewing the
sufficiency of the evidence supporting the district court’s legal conclusion that
the defendant’s conviction was a “generic burglary.”

       We have recognized the distinction between the legal inquiry at the heart
of Taylor and the factual question of whether a defendant has been convicted—
period. See United States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007).
When seeking only to prove the mere fact of a conviction, rather than its
elements or underlying facts, the Government need not adhere to the stringent
requirements of Taylor or Shepard v. United States, 544 U.S. 13 (2005). Neri-
Hernandes, 504 F.3d at 591. The strict standard of review that applies in those
cases is likewise inapposite here. In short, Martinez-Cortez is not controlling. 1


       1Ortega-Calderon’s other arguments—first, that factual conclusions based on written
evidence must be reviewed de novo, and second, that Neri-Hernandes and United States v.
Zuniga-Chavez, 464 F.3d 1199 (10th Cir. 2006), support de novo review here—are similarly
unavailing. Factual determinations based on written evidence have received clear error
review since Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574–75 (1985), and neither
Neri-Hernandes nor Zuniga-Chavez identifies the applicable standard of review.
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                                        No. 14-40889
         Clear error review, on the other hand, finds support in our case law. In
United States v. Taylor, 277 F.3d 721 (5th Cir. 2001), we declared that a
“district court’s reliance on a PSR for the quantity of drugs is based . . . on a
finding of fact that the PSR’s information contains an indicia of reliability and
should be reviewed for clear error.” Id. at 724. In other words, the
determination that evidence supporting a disputed fact bears “sufficient
indicia of reliability” under U.S.S.G. § 6A1.3(a) is a factual one, subject to clear
error review. 2 Other cases bear out this reading: in United States v. Gomez-
Alvarez, 781 F.3d 787 (5th Cir. 2015), for instance, we reviewed for clear error
a conclusion that the defendant was in fact the person named in a state court
complaint and abstract of judgment. Id. at 796.

         We find this appeal to be materially indistinguishable from those cases.
Ortega-Calderon contests the reliability of the evidence—the two documents—
used to prove the fact of his 2003 conviction and, as a result, enhance his
sentence. This is analogous to the defendant’s challenge in Taylor—that the
PSR used to support his sentence enhancement was unreliable. In both cases,
the district court credited contested evidence to support a factual finding upon
which it relied to impose a particular sentence. There is no principled reason
to impose a different standard of review in one case than the other.
Accordingly, we review the district court’s determination of reliability for clear
error.



         Although a PSR is entitled to a presumption of reliability, see United States v. Alaniz,
         2

726 F.3d 586, 619 (5th Cir. 2013), this fact is relevant only to the weight of different types of
evidence supporting a disputed fact; it does not affect whether the determination of the
evidence’s reliability is a factual or legal one. Clear error review is therefore not limited to
factual findings made in reliance on a PSR. U.S.S.G. § 6A1.3(a) (“In resolving any dispute
concerning a factor important to the sentencing determination, the court may consider
relevant information . . . provided that the information has sufficient indicia of reliability to
support its probable accuracy.” (emphasis added)).
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                                     No. 14-40889
                                           III.

      Moving to the merits of the appeal, Ortega-Calderon contends that the
district court clearly erred by relying on the docket sheet and Disposition of
Arrest and Court Action to find that he had previously been convicted of a
crime of violence, 3 and then to enhance his sentence. We disagree, and
therefore affirm his sentence.

                                            A.

      Ortega-Calderon points to our decision in Neri-Hernandes for the
proposition that records offered to prove the existence of a prior conviction
must, at a minimum, be “obtained from a state court and prepared by a clerk.”
Neri-Hernandes, 504 F.3d at 591 (quoting Zuniga-Chavez, 464 F.3d at 1205).
Since the documents in this case were not shown to fulfill either requirement,
he continues, his sentence should be overturned. But such a restrictive rule is
at odds with both Neri-Hernandes itself and the Sentencing Guidelines. We
therefore decline to adopt it.

                                            1.

      In Neri-Hernandes, we affirmed a crime of violence enhancement based
on a previous conviction, which the Government proved using Certificates of
Disposition from New York. The Certificates bore sufficient indicia of
reliability, in part because they “constitute[d] presumptive evidence of the
facts stated in such certificate” in New York. Id. at 592 (quoting United States
v. Green, 480 F.3d 627, 632 (2d Cir. 2007)). In reaching this conclusion, we cited


      3   Ortega-Calderon concedes that assault with a deadly weapon under Cal. Penal Code
§ 245(a)(1) qualifies as a “crime of violence” under the Guidelines. He challenges only the
reliability of the evidence used to prove the conviction exists.
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                                  No. 14-40889
the language from Zuniga-Chavez upon which Ortega-Calderon now relies. Id.
at 591. But our approval of that case was a far cry from establishing a rule for
determining when evidence of a prior conviction is reliable. Rather, Zuniga-
Chavez illustrated the distinction between a Shepard inquiry, where the
Government must prove the facts underlying a conviction, versus merely
proving that a conviction exists. Id. at 591–92. This distinction helped the
Court focus on the operative question: “whether the New York Certificates of
Disposition ha[d] sufficient indicia of reliability to support their probable
accuracy such that the documents c[ould] be used as evidence of [the
defendant’s] prior conviction.” Id. In other words, the issue in Neri-Herndandes
was whether the Certificates were reliable, and not whether they had been
prepared by a clerk and obtained from a state court.

      Zuniga-Chavez, upon which Ortega-Calderon also relies, helps him even
less. There, the Tenth Circuit stated 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
contradictory evidence.” 464 F.3d at 1205. But the court was simply addressing
the specific situation before it, where the Government had presented
uncertified case summaries, obtained from a California state court, to prove
the defendant’s convictions. Id. at 1204. In fact, the court acknowledged that
“reliability—not certification—is the key for determining the sufficiency of
evidence of a prior conviction.” Id. In both cases, then, the “case summary
obtained from a state court and prepared by a clerk” was simply an example of
a document with sufficient indicia of reliability, rather than a baseline. Neither
case requires the Government to provide the proof Ortega-Calderon seeks.



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                                  No. 14-40889
                                         2.

      Limiting the Government to presenting only state court documents
prepared by court clerks would also go against the requirements of the
Sentencing Guidelines. In cases with disputed facts, the Guidelines require
only that the evidence considered by the sentencing court have “sufficient
indicia of reliability”; they do not require that these indicia come in a particular
form. U.S.S.G. § 6A1.3(a); see also United States v. Bermea, 30 F.3d 1539, 1576
(5th Cir. 1994) (“Reasonable reliability is all that is required by § 6A1.3(a).”).
To adopt Ortega-Calderon’s rule would thus impose a standard of proof above
and beyond what the statute requires.

      Furthermore, the Sentencing Guidelines explicitly disavow applying
“the rules of evidence applicable at trial.” U.S.S.G. § 6A1.3(a). Here, Ortega-
Calderon essentially brings an authentication challenge—he argues that the
documents in question are not sufficiently reliable to determine that they are
what they purport to be: records of his conviction. See Fed. R. Evid. 901(a). The
Federal Rules of Evidence, however, permit authentication by any “evidence
sufficient to support a finding that the item is what the proponent claims it is.”
Id. Included in Rule 901’s non-exhaustive list of authentication examples is
one for public records, which can be authenticated by evidence that either “a
document was recorded or filed in a public office as authorized by law; or . . . a
purported public record or statement is from the office where items of this kind
are kept.” Fed. R. Evid. 901(b)(7)(A)–(B). Restricting the acceptable “indicia of
reliability” to proof that the records were “obtained from a state court and
prepared by a clerk” would therefore be even less permissive than the Federal




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                                     No. 14-40889
Rules of Evidence. 4 We cannot accept such an incongruous result, and
accordingly reject Ortega-Calderon’s argument.

                                           B.

      Turning to the district court’s determination in this case—that the
docket sheet and Disposition of Arrest and Court Action were sufficiently
reliable to justify the enhancement—we find no clear error. As the district
court found, the docket report contains a significant amount of detail regarding
the proceedings in the 2003 case, and the two documents strongly corroborate
one another. Both identify the defendant as “Juan Ortega Calderon,” indicate
that he pleaded nolo contendere to a single charge of assault with a deadly
weapon, and show he was sentenced to 180 days in jail and thirty-six months’
probation. This evidence is sufficient to withstand our scrutiny.

      This result aligns with our unpublished decision in United States v.
Mazarego-Salazar, 590 F. App’x 345 (5th Cir. 2014), which also affirmed a
sentencing enhancement based on a crime of violence. In that case, the district
court had relied on “a two-page printed form” with the heading “Supreme Court
of the State of New York.” Id. at 348. An unidentified individual had filled in
the form to indicate that the defendant had pleaded guilty to second degree
assault, and a trial court judge had signed it. Id. Recognizing that we had
previously approved the use of “clerical-type documents” to “prove the basis of
the underlying conviction,” this Court upheld the district court’s sentencing
enhancement. Id. at 348–49. The documents in this case are at least as reliable
as the one approved in Mazarego-Salazar, so the district court’s decision to rely


      4 We emphasize that our decision does not suggest incorporating the Federal Rules of
Evidence into sentencing proceedings. Both the Guidelines and the Rules flatly contradict
such a result. U.S.S.G. § 6A1.3(a); Fed. R. Evid. 1101(d)(3).
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                                No. 14-40889
on them was not clearly erroneous.

      We also note that Ortega-Calderon has presented no evidence
challenging the veracity of the information contained in these documents. In
fact, when questioned about the PSR, he admitted it was accurate. We have
previously refused to find evidence of a prior conviction to be unreliable when
the defendant has not come forward with contrary proof, and we do so again
here. See id. at 349; Neri-Hernandes, 504 F.3d at 592. The district court did
not clearly err.

      AFFIRMED.




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