United States v. Juan Parra-Perez ( 2012 )

Case: 10-51154 Document: 00511897798 Page: 1 Date Filed: 06/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 25, 2012
No. 10-51154
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN PARRA-PEREZ, also known as Juan Parra, also known as Roberto
Garcia-Martinez, also known as Juan Perrez-Parra, also known as Juan Perez,
also known as Miguel Miranda, also known as Roberto Garcia,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-1324-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Juan Parra-Perez appeals from his conviction of conspiracy to possess with
intent to distribute methamphetamine and possession with intent to distribute
methamphetamine. He argues that the district court erred by failing to strictly
comply with the requirements of 21 U.S.C. § 851 as to his 2009 state court
conviction of possession of a controlled substance with intent to deliver before
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51154 Document: 00511897798 Page: 2 Date Filed: 06/25/2012
No. 10-51154
using that conviction to enhance his mandatory minimum sentence to 20 years
of imprisonment pursuant to 21 U.S.C. § 841 (b)(1)(A)(viii). Parra-Perez next
argues that the district court erred by basing its determination that he had
incurred a prior conviction for a felony drug offense entirely on the presentence
report (PSR) and the enhanced felony information, without reference to the
kinds of documents required by Shepard v. United States, 544 U.S. 13 (2005).
He further contends that his criminal history score was incorrect if the
enhancement conviction was not properly proved.
None of the contentions raised on appeal were raised in the district court.
Those contentions therefore are reviewed for plain error. See United States v.
Mata, 491 F.3d 237, 244 (5th Cir. 2007); United States v. Jenkins, 487 F.3d 279,
281 (5th Cir. 2007). To establish reversible plain error, a defendant 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 the defendant 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. Id.Here, appellate counsel concedes that trial counsel was provided with
copies of the indictment and judgment relevant to Parra-Perez’s 2009 Texas
conviction, and that those documents prove the conviction alleged in the
Government’s enhanced penalty information. We treat counsel’s concessions as
judicially binding admissions of fact. See Campbell v. Sonat Offshore Drilling,
Inc., 979 F.2d 1115, 1119 (5th Cir. 1992); City Nat’l Bank v. United States,
907 F.2d 536, 544 (5th Cir. 1990). Parra-Perez thus cannot demonstrate that he
could have raised a successful challenge to the use of the 2009 Texas conviction,
and he cannot demonstrate that reliance on the PSR and enhanced penalty
information affected his substantial rights. He therefore cannot demonstrate
reversible plain error. See Puckett, 556 U.S. at 135; Mata, 491 F.3d at 245.
AFFIRMED.
2