United States v. Juan Morales-Santiago ( 2019 )

Case: 19-40152 Document: 00515189838 Page: 1 Date Filed: 11/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40152 November 6, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JUAN YSIDRO MORALES-SANTIAGO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-1807-1
Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
The government charged Juan Ysidro Morales-Santiago with illegal
reentry into the United States after he had been deported. Morales-Santiago
pleaded guilty and the district court sentenced him to twenty-four months of
imprisonment. He challenges his sentence. We affirm.
I.
The government removed Morales-Santiago, a citizen of the Dominican
Republic, from the United States on July 2, 2013. Customs and Border Patrol
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40152
agents apprehended Morales-Santiago entering the United States on October
4, 2018, without authorization. Morales-Santiago pleaded guilty to illegal
reentry after removal per 8 U.S.C. § 1326.
The presentence report (PSR) initially calculated a total offense level of
16: Illegal entry is an eight-level base offense and Morales-Santiago’s 2013
felony conviction in Pennsylvania for armed robbery resulted in a ten-level
enhancement. U.S.S.G. § 2L1.2(b)(2)(A). The PSR included an unsigned
docket entry and a court summary detailing Morales-Santiago’s 2013
conviction and stated that he was sentenced to a minimum of eleven months
and fifteen days and a maximum of 233 months. Because Morales-Santiago
accepted responsibility, the PSR also factored in a two-level reduction. The
2013 conviction also resulted in Morales-Santiago receiving three criminal
history points, giving him a Category II criminal history score. Based on the
total offense level and Category II criminal history score, the recommended
sentencing guidelines range was twenty-four to thirty months. The PSR then
recommended an upward departure from that range given Morales-Santiago’s
extensive criminal history and the likelihood that he would commit further
crimes. Morales-Santiago objected in writing to the PSR’s conclusions, arguing
that the Pennsylvania court summary and docket entry were not credible
because they were “not signed by a judge.”
Later, the probation officer filed a Supplement to the PSR explaining
that the original PSR incorrectly listed the maximum sentence for the 2013
robbery. The correct maximum sentence was twenty-three months, not 233
months. The correction resulted in a six-level enhancement rather than a ten-
level one, and a new guidelines range of twelve to eighteen months.
The court sentenced Morales-Santiago to twenty-four months, a figure
above the corrected guidelines range. In explaining the sentence, the court
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No. 19-40152
noted that Morales-Santiago had “three serious convictions” on his record—the
2013 robbery, a 2002 “drug trafficking offense,” and a contempt of court charge.
At sentencing, Morales-Santiago made two objections. First, he
reiterated his written objections to the credibility of the Pennsylvania court
documents, arguing they failed to support a finding about the length of the
robbery conviction’s sentence. The court stated that it had reviewed the
documentation, acknowledged the typographical error in the PSR, and
concluded the underlying documents were sufficient to establish the felony
conviction. Second, Morales-Santiago objected to the unreasonableness of the
sentence under the 18 U.S.C. § 3553(a) sentencing factors and for exceeding
the guidelines. The district court explained its reasoning and how it used the
guidelines in determining the appropriate sentence. Morales-Santiago
appealed, arguing that the district court clearly erred in applying the six-level
enhancement based on nothing more than the uncorroborated statements from
the probation officer supporting the length of the robbery sentence.
II.
A district court’s interpretation or application of the sentencing
guidelines is reviewed de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). But that only
applies if the defendant preserved the error; unpreserved claims are subject to
reversal only if the error is plain. United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009). “To preserve error, an objection must be
sufficiently specific to alert the district court to the nature of the alleged error
and to provide an opportunity for correction.” United States v. Neal, 578 F.3d
270, 272 (5th Cir. 2009).
Morales-Santiago grounds this appeal exclusively on the argument that
the probation officer’s statement about the length of the sentence in the PSR
Supplement was an insufficient basis for the sentencing enhancement. But at
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No. 19-40152
his sentencing hearing, Morales-Santiago’s objections focused on two wholly
different concerns. The first was whether the Pennsylvania court documents
were insufficient to show a prior felony conviction. The second was that the
sentence was “unreasonable and beyond the sentencing under the 3553(a)
factors.” He never objected to, or even referenced, the probation officer’s
statement regarding the length of the 2013 robbery sentence. And in his
written objections, he criticized only the credibility of the state court
documents to support the fact of the conviction, again omitting any mention of
the probation officer’s statement.
Because the objections in the district court had to do with the credibility
of the state court documents or the reasonableness of the sentence under the
§ 3553(a) factors, Morales-Santiago did not preserve his claim that the district
court improperly relied on the probation officer’s uncorroborated statement
about the sentence of his 2013 conviction. Plain error review therefore applies,
and we find no error. Evaluating evidence proving the circumstances of a prior
conviction is a factual determination and “[q]uestions of fact capable of
resolution by the district court upon proper objection at sentencing can never
constitute plain error.” United States v. Guerrero, 5 F.3d 868, 871 (5th Cir.
1993) (internal quotation marks and citation omitted). Morales-Santiago
failed to raise—and thus preserve—his argument that the probation officer’s
statement was insufficient and to provide the district court “an opportunity for
correction.” Neal, 578 F.3d at 272.
We affirm.
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