United States v. Jose Hyrtado , 551 F. App'x 161 ( 2014 )

Case: 13-10484 Document: 00512491580 Page: 1 Date Filed: 01/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-10484
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 7, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE A. HYRTADO, also known as Marco Raul Fuertes-Olmedo, also known
as Ernesto Montenegro,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:12-CR-56-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Jose A. Hyrtado pleaded guilty to possessing a firearm while illegally in
the United States. The probation officer determined that Hyrtado’s two prior
Georgia aggravated assault convictions were crimes of violence (COV);
accordingly, in the Presentence Report (PSR), the probation officer indicated
that Hyrtado’s base offense level was 24 pursuant to U.S.S.G. § 2K2.1(a)(2).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10484 Document: 00512491580 Page: 2 Date Filed: 01/07/2014
No. 13-10484
Hyrtado raised no objection to this determination nor to any other aspect of
the district court’s guideline calculations.
Hyrtado now appeals the 120-month sentence imposed by the district
court. In his opening brief, he argues that the district court erred in relying on
the PSR’s characterization of his Georgia convictions as COVs. The
Government concedes that no state court documents pertinent to Hyrtado’s
Georgia aggravated assault convictions were attached to the PSR. To the
extent the district court relied on the PSR’s characterization of Hyrtado’s prior
offenses to enhance his sentence, it erred. See United States v. Garza-Lopez,
410 F.3d 268, 274 (5th Cir. 2005).
However, after Hyrtado filed his opening brief, this court granted the
Government’s unopposed motion to supplement the appellate record with
copies of records of Hyrtado’s two prior Georgia aggravated assault convictions.
The Government argues that the state court records establish that Hyrtado’s
aggravated assault convictions were COVs. We may consider the state court
documents in assessing the instant appeal, even though the district court did
not do so. See United States v. Vargas-Soto, 700 F.3d 180, 183 (5th Cir. 2012).
As Hyrtado concedes, his failure to object to the application of the
enhancement in the district court results in plain error review. See United
States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To prevail
under the plain error standard, Hyrtado must show an error that is “clear or
obvious, rather than subject to reasonable debate.” Puckett v. United States,
556 U.S. 129, 135 (2009). He also must demonstrate that any error affected
his substantial rights. Id. If he makes these showings, this court has the
discretion to correct the error if it seriously affects the fairness, integrity or
public reputation of judicial proceedings. Id.
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Case: 13-10484 Document: 00512491580 Page: 3 Date Filed: 01/07/2014
No. 13-10484
The commentary to § 2K2.1 instructs that “crime of violence” has the
meaning given that term in U.S.S.G. § 4B1.2(a) and the commentary to that
Guideline. § 2K2.1, comment. (n.1); United States v. Mohr, 554 F.3d 604, 606
(5th Cir. 2009). For an offense to qualify as a COV, it must either “(1) contain
as a statutory element the ‘use, attempted use, or threatened use of physical
force against the person of another; (2) belong to the list of enumerated
offenses; (3) or fall under the ‘residual clause’ of § 4B1.2(a)(2) by presenting a
‘serious risk of physical injury to another.’” Mohr, 554 F.3d at 607.
We have not previously addressed whether the statute of conviction, Ga.
Code § 16-5-21(a)(2), is a COV. Having reviewed the statute, we conclude that
any differences between the statute and the generic, contemporary definition
of “aggravated assault” are immaterial, and therefore Hyrtado’s previous
convictions are COVs because they belong to the list of enumerated offenses.
See United States v. Esparza-Perez, 681 F.3d 228, 231-32 (5th Cir. 2012);
United States v. Rojas-Gutierrez, 510 F.3d 545, 549 n.5 (5th Cir. 2007); § 4B1.2,
comment. (n.1). In the alternative, in view of the conduct expressly charged in
the state court indictments, Hyrtado’s aggravated assault convictions were
COVs under the residual clause of § 4B1.2, comment. (n.1). See United States
v. Stoker, 706 F.3d 643, 649 (5th Cir. 2013); United States v. Lipscomb, 619
F.3d 474, 478 (5th Cir. 2010). Thus, any error by the district court did not
affect Hyrtado’s substantial rights, and plain error has not been shown. See
Puckett, 556 U.S. at 135.
AFFIRMED.
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