United States v. Gonzalez-Patino , 182 F. App'x 285 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 8, 2006
Charles R. Fulbruge III
Clerk
No. 05-20461
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GUADALUPE GONZALEZ-PATINO, also known as Jose G
Gonzalez,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
4:04-CR-386-ALL
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Gonzalez-Patino pleaded guilty to illegal
reentry and subsequently received a sixteen-level sentencing
enhancement based on a previous conviction for drug trafficking.
For the first time on appeal, Gonzalez-Patino argues that (1) the
district court erred by solely relying on his presentencing report
*
Pursuant to 5TH CIR. R. 47.5, this 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that this opinion should not be published and is not precedent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.
(“PSR”) in determining that his prior conviction was a drug
trafficking offense; (2) the use of his prior conviction violated
the Double Jeopardy Clause and the Eighth Amendment; and (3) he had
ineffective assistance of counsel.
For the reasons explained below, the sentence is AFFIRMED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gonzalez-Patino pleaded guilty to illegal reentry after
deportation under 8 U.S.C. § 1326(a)(1) (2000). The PSR
recommended a sixteen-level enhancement for a prior conviction for
“a drug trafficking offense for which the sentence imposed exceeded
thirteen months.” U.S.S.G. § 2L1.2(b)(1)(A)(i) (2004). At
sentencing, the court relied on the PSR’s description of a 1991
offense1 in determining that the offense constituted “drug
trafficking.” The PSR did not identify the Texas statute under
which Gonzalez-Patino was convicted. It is undisputed that the
statute was TEXAS HEALTH & SAFETY CODE § 481.112(a) (Vernon 1989).2
At sentencing, Gonzalez-Patino did not object to the court’s
reliance on the PSR. The court sentenced him to fifty-seven
1
The PSR described police surveillance of Gonzalez-Patino in
which they observed “the defendant who appeared to be conducting
transactions in the parking lot of [a] lounge.” It also
described finding on or near the defendant “two bags containing
cocaine,” “$2,772,” “[a]n additional $160.95,” and “a triple beam
scale.”
2
As pointed out by the Government, Gonzalez-Patino
mistakenly cites a more recent version of the statute. This does
not affect our analysis.
2
months’ imprisonment. Gonzalez-Patino appealed.
II. STANDARD OF REVIEW
Gonzales-Patino concedes that plain error review is
appropriate, given that he raises these issues for the first time
on appeal. Plain error exists when: “(1) there was an error; (2)
the error was clear and obvious; and (3) the error affected the
defendant’s substantial rights.” United States v. Villegas, 404
F.3d 355, 358 (5th Cir. 2005). Even if these conditions are met,
an appellate court may exercise its discretion to notice the error
only if “the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 358–59.
III. DISCUSSION
A. The Court’s Reliance on the PSR
A district court is “not permitted to rely on a PSR’s
characterization of a defendant’s prior offense in order to make a
determination of whether it was a ‘drug trafficking offense.’”
United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).
This follows the categorical approach outlined in Taylor v. United
States, 495 U.S. 575, 602 (1990), that requires sentencing courts
to determine the nature of a prior conviction by examining the
statute under which the conviction was attained. For statutes that
contain both conduct that qualifies for an enhancement and conduct
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that does not, courts can also examine charging instruments or jury
instructions. Id. The district court erred by not reviewing the
necessary documents. This error is plain.
Gonzalez-Patino, however, fails to satisfy the third prong of
plain error review. Gonzalez-Patino bears the burden of proving
that the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 734 (1993). To meet that burden, he must show
a reasonable probability that, but for the error, he would have
received a lesser sentence. Villegas, 404 F.3d at 364.
Gonzalez-Patino fails to argue that his prior conviction was
not for drug trafficking. While the statute at issue might include
some conduct that is not “drug trafficking,”3 Gonzalez-Patino does
not argue that his conviction was for that specific conduct. He
does not contend that were the district court to review allowable
evidence, such as the charging instrument, that this evidence would
show that he had not committed a “drug trafficking” offense.
Instead, Gonzalez-Patino simply shows that without the sixteen-
level enhancement he would have received a shorter sentence. This
is not enough. United States v. Ochoa-Cruz, __ F.3d __, 2006 WL
548421, at *2 (5th Cir. Mar. 7, 2006). Without at least arguing
3
Gonzalez-Patino argues that the statute at issue includes
some conduct that would not qualify as “drug trafficking” under
the Sentencing Guidelines. Specifically, he contends that the
statute covers “delivery” of a controlled substance, which
includes merely “offering to sell” the substance. We assume
without deciding that he is correct.
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that the drug trafficking enhancement was ultimately wrong,
Gonzalez-Patino cannot show that he would have received a lesser
sentence. Id.Gonzalez-Patino has not shown that the error affected his
substantial rights. Therefore, his argument fails under plain
error review.
B. The Constitutionality of the Enhancement
Gonzalez-Patino argues, also for the first time on appeal,
that the sixteen-level enhancement violated the Double Jeopardy
Clause by unconstitutionally punishing him twice for his 1991
offense. See U.S. CONST. amend V. He contends that a court already
sentenced him to ten years’ imprisonment for the offense, and that
the enhancement punishes him again for the same conduct. He also
argues, again for the first time on appeal, that the enhancement
violates the Eighth Amendment. See U.S. CONST. amend VIII. He
contends that the enhancement, when considered with the time he
already served for the 1991 offense, creates a punishment that is
grossly disproportionate to his conduct. See Ingraham v. Wright,
430 U.S. 651, 667 (1977).
Gonzalez-Patino has not established error. The use of a prior
conviction for enhancement purposes does not violate double
jeopardy. Sudds v. Maggio, 696 F.2d 415, 417 (5th Cir. 1983). In
addition, Gonzalez-Patino’s Eighth Amendment argument lacks merit.
Our Eighth Amendment analysis is limited to the punishment
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surrounding the illegal reentry. We cannot, as Gonzalez-Patino
suggests, consider the current punishment in conjunction with the
punishment for the 1991 offense. Cf. United States v.
Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir. 1993) (“[A]ppellate
review for Eighth Amendment challenges is narrow.”). Gonzalez-
Patino’s fifty-seven months’ sentence is not grossly
disproportionate to his conduct. Therefore, Gonzalez-Patino’s
constitutional arguments fail.
C. Ineffective Assistance of Counsel
Gonzalez-Patino also contends that the sentence cannot stand
because he received ineffective assistance of counsel. This claim
is not ripe for appellate review. See United States v. Sidhu, 130
F.3d 644, 650 (5th Cir. 1997). “Generally, a claim for ineffective
assistance of counsel is not reviewed on direct appeal when, as
here, there has been no development of the issue in the district
court.” Id. This Court will consider such claims in “rare cases”
where the record is fully developed. United States v. Cornett, 195
F.3d 776, 781 n.2 (5th Cir. 1999). Contrary to Gonzalez-Patino’s
assertions, however, this is not one of those rare cases. There is
no record regarding counsel’s alleged ineffectiveness.
AFFIRMED.
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