United States v. Palacios

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 28, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-31200
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CARLOS WILMER PALACIOS, also known as Jose Perez Antonio,
also known as Jose Maurico Palacio, also as Marcos
Rodriguez-Alvarenga, also known as Jose Maurico Palacios,
also known as Jesus Enriquez, also known as Carlos
Hernandez, also known as Carlos Palacios-Palacios, also
known as Marcos Rodriguez, also known as Carlos Wilmer
Hernandez, also known as Samuel Rodriguez, also known
as Wilmer Palacios, also known as C. W. Palacios, also
known as Jose Hernandez Palacio, also known as Jose
Antonio Perez, also known as Antonio Rodriguez
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-169-1
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Carlos Wilmer Palacios appeals from his guilty-plea
conviction and sentence for illegal reentry after deportation
from the United States. He argues that the district court erred
*
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this opinion should not be published and is not precedent except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.
No. 06-31200
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by relying on the presentence report’s characterization of his
prior conviction as a drug trafficking offense to enhance his
sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(B). As Palacios did
not preserve this issue in the court below, we review for plain
error. See United States v. Villegas, 404 F.3d 355, 358 (5th
Cir. 2005). Plain error exists when “(1) there was an error;
(2) the error was clear and obvious; and (3) the error affected
the defendant’s substantial rights.” Id.To determine whether a prior conviction qualifies as a drug
trafficking offense under § 2L1.2, the court may consider “the
statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented.” Shepard v.
United States, 544 U.S. 13, 16 (2005). “[U]nder Shepard, a
district court is not permitted to rely on a PSR’s
characterization of a defendant’s prior offense for enhancement
purposes.” United States v. Garza-Lopez, 410 F.3d 268, 274 (5th
Cir. 2005).
Because the district court did not have access to any
Shepard-approved documents at the time of sentencing, the
district court erred in enhancing the sentence. This error was
clear and obvious because it conflicts with Shepard. See United
States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006).
In order to prove the third prong of the plain error test,
Palacios must prove that if the district court relied the state
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court judgment and information at sentencing it would not have
enhanced his sentence pursuant to § 2L1.2(b)(1)(B). See Ochoa-
Cruz, 442 F.3d at 867. In the instant case, the state court
judgment and information are too ambiguous to show whether
Palacios was convicted of a drug trafficking offense warranting a
12-level enhancement. Accordingly, it is impossible to determine
whether Palacios would have received a lesser sentence if the
district court had reviewed these state court records. The
proper remedy in such a case is a remand for development of the
record and resentencing. See United States v. Bonilla-Mungia,
422 F.3d 316, 321 (5th Cir.), cert denied, 126 S. Ct. 819 (2005).
For these reasons, we vacate Palacios’s sentence and remand
for development of the record and resentencing.
VACATED AND REMANDED.