United States v. Ordunez

Case: 21-50869 Document: 00516786985 Page: 1 Date Filed: 06/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 14, 2023
No. 21-50869 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Ernesto Ordunez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-129-1
______________________________
Before Ho, Oldham, and Douglas, Circuit Judges.
Per Curiam: *
Ernesto Ordunez was indicted in July of 2020 for one count of
conspiracy to possess with intent to distribute five or more grams of
methamphetamine. At sentencing, the district court determined that
Ordunez qualified as a career offender under U.S.S.G. § 4B1.1. Ordunez now
challenges that determination, pointing to three prior convictions: (1) a 1998
federal conviction for possession of marijuana with intent to distribute in
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 21-50869
violation of 21 U.S.C. § 841; (2) a 2008 conviction in state court of attempted
child abuse resulting in great bodily harm in violation of New Mexico Statutes
§ 30-6-1(D); and (3) a 2008 conviction in state court for three counts of
aggravated assault with a deadly weapon in violation of New Mexico Statutes
§ 30-3-2(A). He argues that none of these prior convictions qualify as crimes
of violence or controlled substance offenses for purposes of § 4B1.1. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. For the
reasons provided herein, we AFFIRM the district court’s application of the
career offender enhancement.
I. STANDARD OF REVIEW
Though the parties dispute the applicable standard of review, plain
error applies throughout. Ordunez failed to object to the district court’s
categorization of his 1998 marijuana conviction as a controlled substance
offense, instead arguing it was too old to qualify for an enhancement. See
United States v. Huerra, 884 F.3d 511, 519 (5th Cir. 2018) (“[W]e subject to
plain-error review arguments that are raised for the first time on appeal.”).
Regarding the two remaining qualifying offenses — aggravated assault
with a deadly weapon and attempted child abuse resulting in great bodily
harm — Ordunez argues this court should apply de novo review. In his
written objections to the PSR, he stated in full that he “objects to the
classification of the felonies in paragraph 19(B) [attempted child abuse] and
19(C) [aggravated assault]” because “these felonies should not be classified
as violent felonies.”
“To preserve an issue for appeal, the objection below ‘must fully
apprise the trial judge of the grounds for the objection so that evidence can
be taken and argument received on the issue.’” Huerra, 884 F.3d at 519(quoting United States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995)). “There
is no bright-line rule for determining whether a matter was raised below.”
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United States v. Soza, 874 F.3d 884, 889 (5th Cir. 2017) (cleaned up). “If a
party wishes to preserve an argument for appeal, the party must press and
not merely intimate the arguments during the proceedings before the district
court.” Id. (cleaned up). The objection must be “sufficiently specific to alert
the district court to the nature of the alleged error and provide an opportunity
for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
Although Ordunez objected to the characterization of his remaining
qualifying offenses as crimes of violence, he provided no reasons for this
objection. The probation officer responded to Ordunez’s objection by stating
that he “did not provide any reasons as to why the convictions should not be
considered crimes of violence.” At sentencing, Ordunez’s counsel appeared
to argue that the objection related to whether the underlying offenses were
aggravated, but that they were unable to obtain the documents to make their
argument. 1 The district court stated that it agreed with the probation
officer’s response and overruled Ordunez’s objections.
Because the objection was not sufficiently clear to alert the district
court to the alleged error, this court reviews for plain error. To demonstrate
plain error, a defendant has the burden of showing (1) an error, (2) that is
clear or obvious, and (3) that affects the defendant’s substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If satisfied, this court has
the discretion to remedy the error if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id._____________________
1
Ordunez’s counsel indicated that “[t]he second objection I made was basically
that how his felonies were classified, it makes him a career offender.” However, his counsel
indicated he could not “go forward with objections saying that I found anything that says
it’s not aggravated … So I would like to at least leave my objection in place in case
something happens later on.”
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II. DISCUSSION
The career offender enhancement is applied when “the defendant has
at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” § 4B1.1(a). Because the district court found
that Ordunez had committed three such offenses, he must show that two of
the three prior convictions were not either controlled substance offenses or
crimes of violence to demonstrate that the career offender enhancement was
improperly applied. See id.
The term “controlled substance offense” is defined, in relevant part,
as “an offense under federal … law, punishable by imprisonment for a term
exceeding one year, that prohibits … the possession of a controlled substance
(or a counterfeit substance) with intent to … distribute[.]” U.S.S.G.
§ 4B1.2(b). A crime of violence is a crime punishable by more than a year
under federal or state law that has as an element the use, attempted use, or
threatened use of physical force against the person of another (“elements
clause”) or is otherwise included in an enumerated category. U.S.S.G.
§ 4B1.2(a).
To determine whether a prior conviction constitutes such an offense,
this court uses the categorical approach, “look[ing] only to the elements of
the prior offense, not to the actual conduct of the defendant in committing
the offense.” United States v. Hinkle, 832 F.3d 569, 572 (5th Cir. 2016).
Under the categorical approach, courts “must presume that the conviction
rested upon [nothing] more than the least of th[e] acts criminalized, and then
determine whether even those acts are encompassed by the generic federal
offense.” Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (cleaned up).
Further, the defendant “must also show a realistic probability that [the
Government] will prosecute the conduct that falls outside the generic
definition of a crime.” Alexis v. Barr, 960 F.3d 722, 726 (5th Cir. 2020)
(cleaned up).
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A. 1998 Federal Marijuana Conviction
Ordunez argues that his marijuana conviction should no longer be
considered a controlled substance offense because the federal definition of
“marihuana” was modified in 2018 to exclude hemp. When Ordunez was
convicted of the crime, 21 U.S.C. § 802 defined “marihuana” to mean “all
parts of the plant Cannabis sativa L., whether growing or not; the seeds
thereof; the resin extracted from any part of such plant, its seeds or resin.” §
802(16) (effective Oct. 11, 1996). In 2018, the statute was amended to
exclude hemp from the definition of “marihuana.” § 802(16)(B)(i) (effective
Dec. 21, 2018).
This court has never held that a pre-2018 predicate conviction does
not qualify as a controlled substance offense for purposes of the Sentencing
Guidelines because hemp was subsequently removed from the CSA prior to
the time of federal sentencing. See, e.g., United States v. Rodriguez, No. 21-
50680, 2022 WL 1615333 (5th Cir. May 23, 2022); United States v. Belducea-
Mancinas, No. 20-50929, 2022 WL 1223800 (5th Cir. Apr. 26, 2022); United
States v. Nava, No. 21-50165, 2021 WL 5095976 (5th Cir. Nov. 2, 2021).
“An error is not plain unless the error is clear under current law.” United
States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010). Because this question
remains an open one in this circuit, Ordunez cannot show the district court
committed plain error.
B. 2008 New Mexico Attempted Child Abuse
Conviction
Ordunez raises two arguments to suggest his attempted child abuse
conviction should not count as a crime of violence: (1) it does “not have as
an element the purposeful or knowing use, attempted use, or threatened use
of force against the person of another,” and (2) a defendant could be
convicted of New Mexico child abuse with a mens rea of recklessness. He
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pleaded guilty to “Attempt to Commit a Felony, to wit: Child Abuse –
Intentional (Resulting in Great Bodily Harm)” on March 13, 2008.
Regarding his force argument, Ordunez contends that the recent
decision in United States v. Taylor, 142 S. Ct. 2015 (2022), in which the
Supreme Court held that attempted Hobbs Act robbery did not qualify as a
“crime of violence” under 18 U.S.C. § 924(c)(3) because a conviction under
that statute does not “require the government to prove that the defendant
used, attempted to use, or even threatened to use force against another
person or his property[,]” 142 S.Ct. at 2020, applies to his conviction for
New Mexico attempted child abuse. In Taylor, the Supreme Court reasoned
that “attempted Hobbs Act robbery [requires] two things: (1) the defendant
intended to unlawfully take or obtain personal property by means of actual or
threatened force, and (2) he completed a ‘substantial step’ toward that end.”
142 S. Ct. at 2020 (emphasis in original). The Taylor court cited United States
v. Resendiz-Ponce, 549 U.S. 102, 106 (2007), for the proposition that an
attempt crime requires a “substantial step” towards completion. Id.Likewise, New Mexico law “requires the accused to take a substantial step”
for attempt crimes. State v. Telles, 446 P.3d 1194, 1204 (N.M. 2019)
(attempted tampering with evidence).
The Supreme Court explained that a defendant could, hypothetically,
take a substantial step towards completing a Hobbs Act robbery without
using, attempting to use, or threatening to use force. Taylor, 142 S. Ct. at
2021. Ordunez argues that Taylor applies here. He argues that, by using the
same logic, a defendant could plan to commit child abuse and buy weapons
intended for that abuse but be arrested as he walks back into his house before
the actual abuse occurs. Further, this court has stated, in an unpublished
opinion, that the New Mexico child abuse statute can be violated without the
use of force, as “a child could be cruelly confined without the use of force
against the child. Without using any force, a child could be kept locked in a
room without access to food or water.” United States v. Torres-Reyes, 444 F.
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App’x. 828, 828 (5th Cir. 2011) (holding that the defendant’s previous child
abuse conviction did not qualify as a crime of violence under § 2L1.2(b)(1)).
The reasoning in Torres-Reyes, however, relied upon this court’s
ruling in United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004), which
analyzed an analogous Texas statute. 444 F. App’x. 828. Calderon-Pena, in
turn, was overruled by United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir.
2018) (en banc). Reyes-Contreras specifically overruled Calderon-Pena’s
requirement of bodily contact for a crime of violence, holding that physical
force extends to applications of force that are subtle or indirect. Id.(“Calderon-Pena is overruled to the extent that it requires bodily contact for
a COV and makes a distinction between creating a risk of injury and using or
attempting to use physical force.”). Reyes-Contreras was then abrogated in
part by Borden v. United States, 141 S. Ct. 1817 (2021). See United States v.
Lopez-Garcia, No. 21-51018, 2022 WL 2527667, at *1 (5th Cir. July 7, 2022)
(unpublished). It is accordingly unclear if the reasoning is still applicable.
Because the current state of the law is neither clear nor obvious, this
argument fails to satisfy the plain error standard.
As to his mens rea argument, this circuit has not ruled on the specific
New Mexico statute at issue, but it does recognize that attempt crimes
require specific intent. See, e.g., United States v. Howard, 766 F.3d 414, 419
(5th Cir. 2014). Further, numerous other circuits have held that attempt
crimes require specific intent even though the underlying crime could be
committed recklessly. See, e.g., United States v. Harris, 941 F.3d 1048, 1054
(11th Cir. 2019) (holding that “under Alabama law, attempt requires the
specific intent to commit an offense and one cannot intend to commit a
reckless offense”); United States v. Gomez-Hernandez, 680 F.3d 1171, 1175
(9th Cir. 2012) (holding that “it is well-settled that attempted aggravated
assault under Arizona law covers only intentional conduct”); United States v.
Castro-Gomez, 792 F.3d 1216, 1218 (10th Cir. 2015) (holding that “Illinois’
definition of attempt … requires the specific intent to commit a substantive
offense.”). Likewise, the Court of Appeals of New Mexico has held, in a case
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involving attempted child abuse, “that the crime of attempt to commit a
felony requires a specific intent to commit the underlying felony.” State v.
Herrera, 33 P.3d 22, 27 (N.M. 2001); see also N.M. Stat. Ann. § 30-28-1.
Because Ordunez’s attempted child abuse conviction requires specific
intent, this argument likewise fails to satisfy plain error review. 2
III. CONCLUSION
Accordingly, the district court’s application of the career offender
enhancement is AFFIRMED.
_____________________
2
Because we find that the marijuana and attempted child abuse convictions are
qualifying offenses for the career offender enhancement, this court need not address
whether the 2008 New Mexico aggravated assault conviction applies. With two qualifying
career-offender predicates, the enhancement would apply regardless, and any third offense
— qualifying or otherwise — affected neither his guidelines range nor sentence.
8