United States v. Mauricio Ortega-Cazares , 609 F. App'x 518 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 14-10414 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 4:13-cr-00692-JGZ-
LAB-1
v.
MAURICIO ORTEGA-CAZARES, AKA MEMORANDUM*
Mauricio Ortega-Cazarez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted July 9, 2015**
San Francisco, California
Before: GILMAN,*** GRABER, and WATFORD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the
United States Court of Appeals for the Sixth Circuit, sitting by designation.
Mauricio Ortega-Cazares challenges the 40-month prison sentence imposed
following his guilty plea for being a removed alien found in the United States, in
violation of 8 U.S.C. § 1326. We affirm.
This is Ortega-Cazares’s second appeal of his sentence. He was initially
sentenced to 40 months in prison and a two-year term of supervised release. That
sentence rested, in large part, on a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) for Ortega-Cazares’s having previously been convicted of a
crime of violence—namely, a 2009 New York conviction for attempted second-
degree assault. While Ortega-Cazares’s appeal was still pending, this court granted
the parties’ joint motion to vacate his sentence due to the government’s failure to
provide the district court with any documentation specifying the statutory basis for
Ortega-Cazares’s New York conviction. Such proof is required to justify the
§ 2L1.2(b)(1)(A)(ii) enhancement.
At resentencing, the government provided additional documentation in the
form of the transcript from Ortega-Cazares’s change-of-plea hearing in state court,
the New York indictment, and a certificate of disposition. The district court again
applied the crime-of-violence enhancement and imposed the same sentence as
before.
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Ortega-Cazares contends that the documentation before the district court on
resentencing was still insufficient to prove that his prior conviction was for a crime
of violence. Although Ortega-Cazares acknowledges that he was convicted of
violating New York’s assault statute (Penal Law § 120.05), he claims that the
government failed to demonstrate that his conviction fell under Subsection (2) of
that law—which Ortega-Cazares concedes would constitute a crime of
violence—rather than Subsection (4), which would not trigger the enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Ortega-Cazares contends that the district
could erred by failing to require the government to produce the judgment of
conviction or a transcript of Ortega-Cazares’s New York sentencing hearing. We
disagree.
So long as the documents submitted to the district court reliably establish the
statute of conviction, this court has not required the submission of a particular type
of evidence. See United States v. Romero-Rendon, 220 F.3d 1159, 1161-62 (9th
Cir. 2000) (“The Sentencing Guidelines allow judges to rely at sentencing on ‘any
information . . . so long as it has sufficient indicia of reliability to support its
probable accuracy.’” (alteration in original) (quoting United States v. Marin-
Cuevas, 147 F.3d 889, 894-95 (9th Cir. 1998))). The documents in question here
provided sufficient proof that Ortega-Cazares was convicted under New York
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Penal Law § 120.05(2). The indictment accused Ortega-Cazares of a “violation of
Penal Law § 120.05 (2),” and the change-of-plea hearing similarly focused on the
charge of “attempted assault in the second degree . . .[,] a Class E Felony in
violation of Penal Law section 110 and 120.05(2).” Taken together, the documents
sufficiently prove that Ortega-Cazares pleaded guilty to a violation of New York
Penal Law § 120.05(2), a crime of violence for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
To the extent that Ortega-Cazares contends that the 16-level enhancement
was improper because New York’s attempt statute—Penal Law § 110—is broader
than the federal definition of the same terms, he is mistaken. This court has
previously concluded that the New York attempt statute “is no broader than the
common law definition,” United States v. Rivera-Ramos, 578 F.3d 1111, 1115 (9th
Cir. 2009), and this panel may not overrule that precedent absent “clearly
irreconcilable . . . intervening higher authority,” Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc). Despite Ortega-Cazares’s argument to the contrary,
no such intervening authority exists.
AFFIRMED.
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