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


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  •                                                           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    that this opinion should not be published and is not precedent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
    3
    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.
    4
    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
    5
    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.
    6