United States v. Cesar Miller-Ortiz , 398 F. App'x 997 ( 2010 )

Case: 09-50682 Document: 00511278726 Page: 1 Date Filed: 10/29/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 29, 2010
No. 09-50682
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CESAR SERGIO MILLER-ORTIZ, also known as Cesar Ortiz-Sonora,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-1073-1
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Cesar Sergio Miller-Ortiz (Miller) appeals the sentence imposed upon his
guilty-plea conviction for illegal reentry. See 8 U.S.C. § 1326. In calculating
Miller’s guideline range of imprisonment, the district court applied an eight-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) based on Miller’s prior
Nebraska conviction for theft by receiving stolen property. Section
2L1.2(b)(1)(C) provides that the offense level for unlawfully entering the United
States should be increased by eight levels if the defendant was previously
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50682 Document: 00511278726 Page: 2 Date Filed: 10/29/2010
No. 09-50682
removed subsequent to an aggravated felony conviction. The definition of
“aggravated felony” includes “a theft offense (including receipt of stolen
property). 8 U.S.C. § 1101(a)(43)(G); § 2L1.2, comment. (n.3).
Miller argues (1) that the district court erred in assessing the eight-level
enhancement pursuant to § 2L1.2(b)(1)(C) because it did not have sufficient
information before it from which to ascertain the elements of the Nebraska
offense and (2) that the Nebraska statute of conviction criminalizes different
methods of committing theft, including methods that cannot form the basis for
a sentencing enhancement under § 2L1.2(b)(1)(C). He argues that his prior
Nebraska conviction warranted only a four-level increase in his offense level
because it qualifies as a felony but not as an aggravated felony.
As Miller concedes, any error resulting from the enhancement is subject
to plain error review because he did not object to the enhancement in the district
court. F ED.R.C RIM.P. 52(b); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.
2005). Plain error review involves the following four prongs: First, there must
be an error or defect that has not been affirmatively waived by the defendant.
Second, the error must be clear or obvious, i.e., not subject to reasonable dispute.
Third, the error must have affected the defendant’s substantial rights. Fourth,
if the above three prongs are satisfied, this court has the discretion to correct the
error only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
(internal quotation marks and citation omitted).
Miller’s first argument is factually incorrect. As Miller acknowledges, the
district court had before it a copy of the Nebraska judgment of conviction. It was
appropriate for the district court to consider and rely upon this state court
document in determining the applicability of the enhancement under
§ 2L1.2(b)(1)(C). See Taylor v. United States, 495 U.S. 575, 602 (1990); Shepard
v. United States, 544 U.S. 13, 16 (2005).
2
Case: 09-50682 Document: 00511278726 Page: 3 Date Filed: 10/29/2010
No. 09-50682
Miller acknowledges in his appeal brief that the Nebraska statute of
conviction was N EB. R EV. S TAT. § 28-517 (2008). Nebraska’s definition of theft
by receiving stolen property is almost identical to the definition in the Model
Penal Code § 223.6(1). See United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th
Cir. 2006). Nebraska’s definition also falls within the generic, contemporary
definition of “a theft offense.” § 1101(a)(43)(G); see Burke v. Mukasey, 509 F.3d
695, 697 (5th Cir. 2007). Thus, the district court correctly determined that
Miller’s prior Nebraska conviction was for an “aggravated felony” within the
meaning of § 2L1.2(b)(1)(C) and that the enhancement was proper. Miller has
not shown that the district court erred in applying the eight level enhancement.
See Puckett, 129 S. Ct. at 1429.
AFFIRMED.
3