United States v. Ruben De La Garza-Gutierrez , 572 F. App'x 269 ( 2014 )

Case: 13-40865 Document: 00512664401 Page: 1 Date Filed: 06/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40865 FILED
Summary Calendar June 16, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUBEN DARIO DE LA GARZA-GUTIERREZ, also known as Gerardo
Rubalcava-Gonzalez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-900-1
Before STEWART, Chief Judge, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ruben Dario De La Garza-Gutierrez (De La Garza) pleaded guilty to
being illegally present in the United States after removal and was sentenced
within the advisory guidelines range to a 27-month term of imprisonment. He
argues on appeal that the district court erred in imposing an eight-level
aggravated felony enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) based
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40865
on his prior conviction of conspiring to launder monetary instruments. De La
Garza contends that the district court improperly relied on information in the
Presentence Report (PSR) to determine that his prior offense warranted the
§ 2L1.2(b)(1)(C) enhancement. He also asserts that the judgment should be
reformed to reflect sentencing under 8 U.S.C. § 1326(b)(1), rather than under
the “aggravated felony” provision of § 1326(b)(2).
As De La Garza concedes, his failure to raise these issues in the district
court results in plain error review. See United States v. Gonzalez-Terrazas,
529 F.3d 293, 296 (5th Cir. 2008). To show plain error, De La Garza must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. See id.An offense described in 18 U.S.C. § 1956 relating to the laundering of
monetary instruments is an aggravated felony “if the amount of the funds
exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(D). Under § 1101(a)(43)(U), “an
attempt or conspiracy to commit an offense described in this paragraph” is also
an aggravated felony.
The Government has supplemented the record with a copy of the plea
agreement in De La Garza’s prior money laundering conspiracy conviction; it
shows that the amount of the funds involved in the offense easily exceeded the
$10,000 threshold of § 1101(a)(43)(D). We may properly consider the plea
agreement in determining whether the prior conviction was an aggravated
felony. See Shepard v. United States, 544 U.S. 13, 16 (2005); United States v.
Fernandez-Cusco, 447 F.3d 382, 388 (5th Cir. 2006). If in view of the foregoing,
De La Garza has not established plain error in the application of the
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Case: 13-40865 Document: 00512664401 Page: 3 Date Filed: 06/16/2014
No. 13-40865
§ 2L1.2(b)(1)(C) aggravated felony enhancement, and reformation of the
judgment is not warranted.
AFFIRMED.
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