United States v. Daniel Herrera

Case: 13-40892 Document: 00512626949 Page: 1 Date Filed: 05/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40892 FILED
Summary Calendar May 12, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
DANIEL HERRERA, Also Known as Daniel Lennys Herrera,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:12-CR-949-1
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
In June 2012, Daniel Herrera was deported from the United States to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40892 Document: 00512626949 Page: 2 Date Filed: 05/12/2014
No. 13-40892
Honduras after serving a two-year sentence for conspiracy to commit robbery
in violation of CONN. GEN. STAT. ANN. §§ 53a-48 and 53a-135. Three months
later, after Border Patrol agents found him in Texas, he pleaded guilty of being
found unlawfully present in the United States after deportation in violation of
8 U.S.C. § 1326. Because of his Connecticut conviction, the district court—
without objection from Herrera—applied a sixteen-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a prior “crime of violence” (“COV”). Herrera
appeals his sentence, claiming that the court plainly erred when it applied the
enhancement. We affirm.
Because Herrera did not object, we review the enhancement only for
plain error. This leaves Herrera with a fatally difficult burden: He must estab-
lish that (1) the district court erred; (2) the error was plain; (3) the plain error
affected his substantial rights; and (4) we should exercise our discretion to
correct the plain error because it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. 1 We have serious doubts that
Herrera’s appeal could survive any of the prongs of plain-error review, 2 but we
leave those questions open: It is sufficient that he has presented no substantial
showing that the fourth prong is met.
1See Puckett v. United States, 556 U.S. 129, 134–35 (2009); United States v. Compian-
Torres, 712 F.3d 203, 206 (5th Cir. 2013); United States v. Blocker, 612 F.3d 413, 416 (5th
Cir. 2010).
2 As to the first prong, the government presents a compelling argument that, under
the modified categorical approach, the prior crime is a COV under § 2L1.2(b)(1)(A)(ii), citing
Descamps v. United States, 133 S. Ct. 2276, 2281–82 (2013). As to the second, accepting
Herrera’s argument would require not just one but two novel expositions of the law relating
to the scope of the phrase “COV” as applied here. As to the third, the district court seemed
to say that it would have applied the same sentence that it gave here even if it were misinter-
preting the guidelines. Cf. United States v. Richardson, 713 F.3d 232, 234, 237 (5th Cir.),
cert. denied, 134 S. Ct. 230 (U.S. 2013) (affirming in a non-plain-error-review case, stating,
“The district court stated that even if its calculation under the Guidelines was incorrect, it
would still impose the same sentence.”). We do not flesh out the merits of these arguments,
however.
2
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No. 13-40892
Herrera’s only contention to address the fourth prong is that the error
resulted in a guidelines recommendation roughly thirty months longer than it
should have. Yet, if that were enough in itself for a reversal on plain-error
review, plain-error reversals would not be rare, as the law requires. 3
So, the only argument presented on appeal in favor of finding prong four
met is unavailing, which is enough for us to affirm. We add, however, that
further argument likely would have been futile. As a matter of fact, Herrera
did engage in a violent conspiracy to rob at least four victims wherein he and
his co-conspirators used a Taser several times on at least one victim and phys-
ically assaulted the others. And they stole several hundred dollars from the
victims. Whatever merit, then, there might have been in parsing the Connect-
icut statute to determine whether it could hypothetically be violated in such a
way so that it would not constitute a COV, we cannot say that applying the
enhancement here “seriously affect[ed] the fairness, integrity, or public repu-
tation of judicial proceedings.” 4
The judgment of sentence is AFFIRMED.
3 See United States v. Ellis, 564 F.3d 370, 378–79 (5th Cir. 2009) (“Not every error that
increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis
that all defendants’ appeals challenging a sentence rest on the practical premise that the
sentence should be less. . . . And even if an increase in a sentence be seen as inevitably
“substantial” in one sense it does not inevitably affect the fairness, integrity, or public reputa-
tion of judicial process and proceedings. [Such an argument] drains all content from the doc-
trine of plain error.”); United States v. Davis, 602 F.3d 643, 652 (5th Cir. 2010).
4 Cf. Puckett, 556 U.S. at 143 (“Given that he obviously did not cease his life of crime,
receipt of a sentencing reduction for acceptance of responsibility would have been so ludicrous
as itself to compromise the public reputation of judicial proceedings.”).
3