United States v. Ortiz ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 15, 2004
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_________________________
No. 03 – 41746
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JASON ORTIZ,
Defendant - Appellant
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas
(C-01-CR-207-1)
______________________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
In this appeal, we review Defendant - Appellant, Jason Ortiz’s, sentence imposed after
revocation of his supervised release following a guilty-plea conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(8). For the following reasons, we
affirm the district court’s judgment.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
-1-
I.
FACTUAL AND PROCEDURAL BACKGROUND
Ortiz pleaded guilty in 2001 to being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). In his Presentence Report (hereinafter, “PSR”), Ortiz’s total offense level was
calculated as 12, and his criminal history score was calculated as IV, thus subjecting him to a
Sentencing Guidelines range of 21-27 months’ imprisonment. Ortiz did not object to the PSR at
this time.
Ortiz was subsequently sentenced to 27 months’ imprisonment, followed by three years’
supervised release. Ortiz did not directly appeal his conviction or sentence.
On July 28, 2003, the Probation Department filed a petition to revoke Ortiz’s supervised
release because of numerous alleged violations. After a hearing, the district court found that Ortiz
had violated the conditions of his supervised release, and ordered that his release be revoked.
Relying on information in Ortiz’s PSR from his underlying conviction for being a felon in
possession of a firearm, the district court sentenced Ortiz to 12 months’ imprisonment, followed
by 24 months’ supervised release. Once again, Ortiz did not object to the information in his PSR
or the guidelines range of imprisonment he faced based upon calculations in the PSR. Ortiz did,
however, timely appeal the sentence.
II.
WAIVER OF APPEAL
Ortiz argues for the first time on appeal that the district court erroneously calculated his
criminal history score in the PSR completed for his conviction for being a felon in possession of a
-2-
firearm. Ortiz argues that the erroneous calculation of his criminal history score led to an unjust
sentence following the revocation of his supervised release and that, accordingly, his sentence
should be vacated.
Specifically, Ortiz argues that the original PSR assessed a total of three criminal history
points for his state-court convictions for causing bodily injury and for criminal mischief. Ortiz
was convicted of assaulting a victim for looking at his girlfriend at a dance and then going to the
parking lot and breaking the windows out of the victim’s car. In the original PSR, Ortiz received
two criminal history points for the assault and one criminal history point for criminal mischief for
breaking the victim’s windows. According to Ortiz, the extra point constituted double counting
because prior sentences in related cases should be treated as one sentence.
If the two convictions had been treated as one sentence, Ortiz would have had a criminal
history score of III, which would have subjected him to a recommended sentencing range of five
to eleven months’ imprisonment. However, with a criminal history score of IV, Ortiz’s
sentencing range was six to twelve months’ imprisonment. As the district court sentenced Ortiz
to the maximum of twelve months’ imprisonment, Ortiz argues that the court plainly erred.
The Government argues that Ortiz cannot challenge the computation of his underlying
criminal history score for the first time on appeal from the sentence imposed following the
revocation of his supervised release.
We agree that Ortiz may not challenge the validity of his underlying criminal history score
for the first time on appeal. This court has held that a defendant may not use the revocation of
supervised release to challenge for the first time on appeal his sentence for an underlying offense.
See United States v. Moody, 277 F.3d 719, 720-21 (5th Cir. 2001). We have also held that a
-3-
defendant appealing a sentence imposed following his second revocation of supervised release
could not raise for the first time the claim that his sentence for the first violation of supervised
release was improper. United States v. Stiefel, 207 F.3d 256, 259 (5th Cir. 2000).
Ortiz’s situation is analogous to a defendant challenging the validity of the underlying
conviction as a defense in a probation revocation proceeding, something which this court has
clearly prohibited. See United States v. Francischine, 512 F.2d 827, 828 (5th Cir. 1975). The
Eleventh Circuit relied on our decision in Francischine in holding that a defendant could not
argue on appeal from the revocation of supervised release that the underlying term of supervised
release was invalid. United States v. Almand, 992 F.2d 316, 317 (11th Cir. 1993). The proper
time for Ortiz to object to the calculation of his criminal history score was prior to his original
sentencing for the underlying conviction, or at the latest on direct appeal. As he failed to do so,
Ortiz waived his right to appeal the calculation of his criminal history score.
III.
PLAIN ERROR
Even if we were to review Ortiz’s challenge to his criminal history score, the review
would be for plain error only because Ortiz raises the argument for the first time on appeal. See
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994).
Ortiz cannot meet the plain error standard. The Chapter 7 guidelines ranges for sentences
imposed upon revocation of supervised release are only advisory. See United States v. Headrick,
963 F.2d 777, 780 (5th Cir. 1992). The statutory maximum sentence is two years’ imprisonment.
See 18 U.S.C. § 3583(e)(3). As Ortiz’s sentence was only twelve months’ imprisonment, it was
not plain error. See Headrick, 963 F.2d at 780, 782-83.
-4-
IV.
CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
-5-