United States v. Jesus Cordova-Portillo

FILED
NOT FOR PUBLICATION
NOV 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-10125, 15-10126
Plaintiff - Appellee, D.C. Nos. 2:13-cr-00977-GMS-1,
2:13-cr-50107-GMS-1
v.
MEMORANDUM*
JESUS RAMON CORDOVA-
PORTILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted September 13, 2016
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and TUNHEIM, Chief District
Judge.**
Defendant Jesus Ramon Cordova-Portillo appeals his sentence for illegal
reentry after deportation in violation of 8 U.S.C. §1326(a), enhanced by
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
§ 1326(b)(1). He challenges the application of a sixteen-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii), arguing that his prior conviction for aggravated
assault under Arizona law was not a crime of violence. We have jurisdiction under
28 U.S.C. § 1291.
Because Cordova-Portillo did not object to the finding in the Presentence
Investigation Report (“PSR”) that he was previously convicted of a crime of
violence, plain error review applies. United States v. Rendon-Duarte, 490 F.3d
1142, 1146 (9th Cir. 2007). Under plain error review, “the appellant must show
that the district court made (1) an error (2) that was clear or obvious, (3) that
affected substantial rights, and (4) that seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v. Castillo-Marin, 684
F.3d 914, 918 (9th Cir. 2012). Because Cordova-Portillo did not object, documents
regarding Cordova-Portillo’s state-court conviction were not presented to the
district court, and the court instead relied solely on the PSR. A court may commit
plain error by relying on a PSR to determine if a prior crime was a qualifying crime
of violence, even without an objection. See id. at 919-20 (collecting cases).
However, “[f]or an error to have affected substantial rights, ‘in most cases it means
that the error must have been prejudicial: It must have affected the outcome of the
district court proceedings.’” Id. at 918 (quoting United States v. Olano, 507 U.S.
2
725, 734 (1993)). In this appeal, Cordova-Portillo has presented, and both parties
rely upon, several documents related to Cordova-Portillo’s state-court conviction.
These judicially-noticed Shepard1 documents establish that Cordova-Portillo’s prior
conviction was a qualifying crime of violence under the modified categorical
approach. Thus, any error in relying on the PSR was not prejudicial, and we affirm.
Cordova-Portillo was convicted of aggravated assault under Arizona Revised
Statutes §§ 13-1203 and 13-1204, which is not categorically a crime of violence.
United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012). However,
§ 13-1203 is a divisible statute, and a conviction under § 13-1203(A)(2) is a crime
of violence because it “has as an element ‘the use, attempted use, or threatened use
of physical force against the person . . . of another.’” United States v. Cabrera-
Perez, 751 F.3d 1000, 1007 (9th Cir. 2014) (quoting 18 U.S.C. § 16(a)).
To determine the subsection under which Cordova-Portillo was convicted,
the Court may look to “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). Here, the information and complaint did not name a subsection of the
1
Shepard v. United States, 544 U.S. 13 (2005).
3
statute, but they included narrowing language identical to § 13-1203(A)(2), stating
the defendant “intentionally placed [the victim] in reasonable apprehension of
imminent physical injury.” Although the language in the information and
complaint cannot be relied on independently to determine whether Cordova-Portillo
was convicted of a crime of violence because Cordova-Portillo’s plea agreement
amended the complaint, see Alvarado v. Holder, 759 F.3d 1121, 1131 (9th Cir.
2014), the factual basis given by Cordova-Portillo’s attorney at his change of plea
hearing mirrored § 13-1203(A)(2), stating that he “intentionally placed [the victim]
. . . in reasonable apprehension of imminent physical injury.” Cordova-Portillo
assented to the factual basis after he was told to listen carefully to his attorney’s
description. As Cordova-Portillo specifically admitted the elements of § 13-
1203(A)(2) at his change of plea hearing, the factual basis can be considered to that
extent in applying the modified categorical approach. See Alvarado, 759 F.3d at
1130 (“A statement of the factual basis supporting the guilty plea ‘may be
considered if specifically incorporated into the guilty plea or admitted by a
defendant.’” (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005)));
United States v. Marcia-Acosta, 780 F.3d 1244, 1251 (9th Cir. 2015).
Because the narrowing language at the change of plea hearing was identical
to the qualifying subsection of the statute of conviction and because Cordova-
4
Portillo was explicitly told to pay attention to his attorney’s statement of the factual
basis and assented to the description, this case is distinct from those
Cordova-Portillo cites. See Marcia-Acosta, 780 F.3d at 1247-49, 1251-53
(reversing the trial court’s finding of a crime of violence where the plea agreement
and charging document contained no narrowing language and the trial court relied
solely on the attorney’s statement, “[a]nd he did that intentionally”—one of three
possible states of mind under a single subsection of the statute of conviction—
during the change of plea hearing, to which the defendant did not assent); United
States v. Sahagun-Gallegos, 782 F.3d 1094, 1100 (9th Cir. 2015) (reversing the trial
court’s finding of a crime of violence where the factual basis of the plea did not
admit the elements of a particular subsection, and even if it had, the defendant never
assented to the factual basis). Accordingly, Cordova-Portillo’s prior conviction was
a crime of violence supporting an enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
AFFIRMED.
5