United States v. Jose Ortiz , 448 F. App'x 499 ( 2011 )

Case: 11-50235 Document: 00511655600 Page: 1 Date Filed: 11/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2011
No. 11-50235
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROSA ORTIZ, Also Known as Jose Ortiz, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 7:10-CR-225-1
Before REAVLEY, SMITH, and PRADO, Circuit judges.
PER CURIAM:*
Jose Ortiz was convicted of making false statements for the purpose of
obtaining a loan, aggravated identity theft, and, with the intent to deceive,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-50235 Document: 00511655600 Page: 2 Date Filed: 11/04/2011
No. 11-50235
falsely representing a number to be his social security number. His punishment
included a 24-month sentence for his aggravated-identity-theft conviction, which
ran consecutively to the concurrent 12-month sentences imposed on the other
two counts. Ortiz appeals, arguing that the 24-month consecutive sentence vio-
lates the Double Jeopardy Clause because it imposes additional punishment for
the same conduct for which he was punished by the 12-month sentences.
Ortiz did not raise his double-jeopardy argument in the district court, so
our review is for plain error. See United States v. Odutayo, 406 F.3d 386, 392
(5th Cir. 2005). To establish plain error, an appellant must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 556 U.S. 129, , 129 S. Ct. 1423, 1429 (2009). Then this court
has the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
“The Fifth Amendment guarantee against double jeopardy protects not
only against a second trial for the same offense, but also against multiple pun-
ishments for the same offense . . . .” Whalen v. United States, 445 U.S. 684, 688
(1980) (internal quotation marks and citation omitted). “[T]he question whether
punishments imposed by a court after a defendant’s conviction upon criminal
charges are unconstitutionally multiple cannot be resolved without determining
what punishments the Legislative Branch has authorized.” Id. “Where . . . a
legislature specifically authorizes cumulative punishment under two statutes . . .
a court’s task of statutory construction is at an end and the prosecutor may seek
and the trial court or jury may impose cumulative punishment under such stat-
utes in a single trial.” Missouri v. Hunter, 459 U.S. 359, 368-69 (1983).
In view of the provisions of the aggravated-identity-theft statute, 18 U.S.C.
§ 1028A, and his conviction of making false statements to obtain a loan, Ortiz
has failed to show clear or obvious error that affects his substantial rights. See
Puckett, 129 S. Ct. at 1429. Accordingly, the judgment is AFFIRMED.
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