United States v. Arriola-Cardona ( 2006 )


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  •                                                              United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                        June 6, 2006
    Charles R. Fulbruge III
    Clerk
    No. 04-20701
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    FRANCISCO ARRIOLA-CARDONA,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:04-CR-90-ALL
    Before JONES, Chief Judge, and SMITH and DENNIS, Circuit Judges.
    PER CURIAM:*
    Francisco Arriola-Cardona (Arriola) was convicted by
    guilty plea of unlawful presence in the United States after removal
    subsequent to an aggravated felony conviction.             Over Arriola’s
    objection, the district court adjusted his base offense level
    upward by eight levels because Arriola’s prior theft conviction was
    an aggravated felony.      The resulting guidelines sentencing range
    was eighteen to twenty-four months.         The district court rejected
    Arriola’s request that his sentence contain a “credit” for time
    *
    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    opinion should not be published and is not precedent except under the limited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.
    spent in custody by immigration authorities, saying, “I can’t give
    him credit.”        The court did sentence Arriola to eighteen months,
    the bottom of the Guidelines range.             Arriola appeals only his
    sentence.
    Aggravated Felony
    Arriola argues that his prior theft conviction does not
    qualify as an aggravated felony under the Guidelines because his
    original two-year sentence was probated and his sentence upon
    revocation of probation was less than one year.              As Arriola raised
    this argument in the district court, our review of the district
    court’s application of the Guidelines is de novo.              United States v.
    Charon, 
    442 F.3d 881
    , 887 (5th Cir. 2006).
    Section     2L1.2(b)(1)(C)      provides   for     an     eight-level
    increase in offense level if the defendant has a prior conviction
    for an aggravated felony.           The commentary to § 2L1.2 adopts the
    definition     of     “aggravated    felony”   set     forth     in    
    8 U.S.C. § 1101
    (a)(43). See § 2L1.2, comment (n.2). Section § 1101(a)(43)(G)
    defines “aggravated felony” to include “a theft offense . . . for
    which the term of imprisonment [is] at least one year.”                    
    8 U.S.C. § 1101
    (a)(43)(G). The phrase “term of imprisonment” refers to “the
    period of incarceration or confinement ordered by a court of law
    regardless of any suspension of the imposition or execution of that
    imprisonment.”       
    Id.
     § 1101(a)(48)(B).
    2
    We distinguish situations in which a court sentences a
    defendant directly to probation and situations like the one in this
    case, in which the court has sentenced the defendant to a period of
    incarceration and then suspended it in favor of probation.                See
    United States v. Landeros-Arreola, 
    260 F.3d 407
    , 410 (5th Cir.
    2001).   Arriola argues that, because his sentence after revocation
    of probation was only seven months, his original sentence of two
    years’ imprisonment, probated for five years, was not “at least one
    year” as required by § 1101(a)(43)(G).          We rejected this argument
    in an unpublished opinion directly on point, United States v.
    Retta-Hernandez, 106 F. App’x 879, 880-83 (5th Cir. 2004).
    Arriola concedes that his prior conviction would be an
    aggravated felony under Retta-Hernandez.              He argues that Retta-
    Hernandez was wrongly decided and points out that, as an unpub-
    lished opinion, it is not precedential.           We nonetheless find the
    reasoning of Retta-Hernandez persuasive, see 5TH CIR. R. 47.5.4, and
    decline to reach a contrary result.
    Constitutionality of 
    8 U.S.C. § 1346
    (a) and (b)
    Arriola   argues   that       
    8 U.S.C. § 1326
       is   facially
    unconstitutional because it treats prior felony and aggravated
    felony convictions as sentencing factors rather than as elements of
    the offense that must be found by a jury.                 This challenge is
    foreclosed by Almendarez-Torres v. United States, 
    523 U.S. 224
    , 235
    3
    (1998), by which we are bound.               United States v. Garza-Lopez, 
    410 F.3d 268
    , 276 (5th Cir.), cert. denied, 
    126 S. Ct. 298
     (2005).
    Fanfan Error
    Arriola was sentenced before the decision in United
    States v. Booker, 
    543 U.S. 220
     (2005), and the district court
    imposed sentence under the then-mandatory Sentencing Guidelines.
    Arriola’s initial brief, filed prior to the issuance of Booker,
    raised no challenge to the constitutionality of the Sentencing
    Guidelines.    In a supplemental letter brief, Arriola argued that
    the district court erred in sentencing him pursuant to a mandatory
    guidelines scheme.         He conceded that, because he had not objected
    to the constitutionality of the Guidelines in district court, the
    plain error standard of review applied to his argument.                        In his
    reply brief, Arriola asserted that his concession of plain error
    review was improvident based on an objection he raised in district
    court.
    Imposition       of     a     sentence    pursuant     to    a   mandatory
    application    of    the    Sentencing       Guidelines    constitutes       “Fanfan”
    error.     United States v. Martinez-Lugo, 
    411 F.3d 597
    , 600 (5th
    Cir.), cert. denied, 
    126 S. Ct. 464
     (2005); see United States v.
    Villegas, 
    404 F.3d 355
    , 364 (5th Cir. 2005) (discussing difference
    between Booker and Fanfan error).                    We have rejected Arriola’s
    argument    that    Fanfan        error     is   structural      and    presumptively
    prejudicial.       United States v. Malveaux, 
    411 F.3d 558
    , 561 & n.9
    4
    (5th Cir.), cert. denied, 
    126 S. Ct. 194
     (2005).                   If Fanfan error
    “is preserved in the district court by an objection,” the burden is
    on the Government to show that the error was harmless.                        United
    States v. Valenzuela-Quevedo, 
    407 F.3d 728
    , 732 (5th Cir.), cert.
    denied, 
    126 S. Ct. 267
     (2005).          Unpreserved claims of Fanfan error
    are reviewed for plain error only, in which case the burden is on
    Arriola   to   show   that    the   error     was   plain       and   affected   his
    substantial rights.     
    Id.
    In initial objections to the PSR, Arriola argued that his
    prior theft conviction was not an aggravated felony “under the
    current, unconstitutional scheme.”           In a footnote, defense counsel
    observed:
    Despite the Fifth Circuit’s recent holding in [United
    States v. Pineiro, 
    377 F.3d 464
     (5th Cir. 2004), vacated,
    
    543 U.S. 1101
     (2005)] that the Supreme Court’s decision
    in Blakely v. Washington, 
    542 U.S. 296
     (2004), does not
    impact the constitutionality of the federal guidelines,
    counsel suspects that the guidelines are doomed.
    This remark was not repeated in Arriola’s objections to the revised
    PSR, nor did counsel or the district court mention Blakely during
    sentencing.
    Under RULE 51(B)   OF THE   FEDERAL RULES   OF   CRIMINAL PROCEDURE, “[a]
    party may preserve a claim of error by informing the court — when
    the court ruling or order is made or sought — of the action the
    party wishes the court to take, or the party’s objection to the
    court’s action and the grounds for that objection.”                         Arriola
    asserts that his references to an “unconstitutional scheme” and to
    5
    the Guidelines being “doomed” preserved Fanfan error.                    We do not
    consider such oblique references to be an “objection” putting the
    district court on notice that a ruling was required.                   We therefore
    review for plain error.
    Plain   error   is   “(1)     error,   (2)    that    is    plain,   and
    (3) that affects substantial rights.” Valenzuela-Quevedo, 
    407 F.3d at 732
     (internal quotation marks and citation omitted).                   If these
    three conditions are met, we may exercise our discretion to notice
    the error, but only if “(4) the error seriously affects the
    fairness, integrity, or public reputation of judicial proceedings.”
    
    Id.
     (internal quotation marks and citation omitted).
    Arriola’s Fanfan error satisfies the first two prongs of
    the standard by being both “plain” and “error.”                 To show an effect
    on   his   substantial    rights,      Arriola   must    show    that    the   error
    “affected the outcome of the district court proceedings.”                      
    Id. at 733
     (internal quotation marks and citation omitted).                   Arriola must
    identify    “statements     in   the    record     by   the     sentencing     judge
    demonstrating a likelihood that the judge, sentencing under an
    advisory scheme rather than a mandatory one, would have reached a
    significantly different result.”             United States v. Pennell, 
    409 F.3d 240
    , 245 (5th Cir. 2005).
    The district court stated that it had chosen a sentence
    “at the low end [of the Guidelines] instead of the middle as
    recommended” by the probation officer because it could not give
    Arriola credit for time in immigration custody.                 A sentence at the
    6
    low end of the Guidelines, without more, is insufficient to show
    that Fanfan error affected a defendant’s substantial rights.         See
    United States v. Bringier, 
    405 F.3d 310
    , 317 n.4 (5th Cir.), cert.
    denied, 
    126 S. Ct. 264
     (2005) (discussing Sixth Amendment Booker
    error).   Nothing in the record indicates that the district court
    would   have   imposed   a   different   sentence   under   an   advisory
    guidelines scheme.   Therefore, Arriola has failed to show that the
    district court’s Fanfan error affected his substantial rights, and
    he cannot establish plain error.
    The district court’s judgment is AFFIRMED.
    7