671 F.3d 494 (5th Cir. 2012), 10-40308, United States v. Chavez-Hernandez

Docket Nº:10-40308.
Citation:671 F.3d 494
Opinion Judge:EDITH H. JONES, Chief Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Miguel CHAVEZ-HERNANDEZ, also known as Francisco Gomez-Torres, Defendant-Appellant.
Attorney:Julia Bowen Stern, Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee. Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Asst. Fed. Pub. Def., Fed. Pub. Defender's Office, Houston, TX, for Defendant-Appellant.
Judge Panel:Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT, District Judge.[*] HAYNES, Circuit Judge, dissenting:
Case Date:February 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 494

671 F.3d 494 (5th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Miguel CHAVEZ-HERNANDEZ, also known as Francisco Gomez-Torres, Defendant-Appellant.

No. 10-40308.

United States Court of Appeals, Fifth Circuit.

February 13, 2012

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          Julia Bowen Stern, Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

          Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Asst. Fed. Pub. Def., Fed. Pub. Defender's Office, Houston, TX, for Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Texas.

          Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT, District Judge.[*]

          EDITH H. JONES, Chief Judge:

          Miguel Chavez-Hernandez pleaded guilty, pursuant to a plea agreement, to being illegally present in the United States after being deported, pursuant to 8 U.S.C. § 1326. Over Chavez-Hernandez's perfunctory objection, the district court increased his base offense level of eight by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), on the theory that his 2009 conviction for sexual activity with a minor in violation of Florida Statute § 794.05 was a " crime of violence." Chavez-Hernandez's criminal history category was II. The district court granted a three-level reduction for acceptance of responsibility and a further reduction sua sponte because the court concluded that his criminal history was over-represented. This resulted in an advisory sentencing guidelines range of 37 to 46 months of imprisonment. U.S.S.G. Ch. 5, Pt. A, Sentencing

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Table. The district court sentenced Chavez-Hernandez to 37 months in prison and two years of supervised release. Chavez-Hernandez filed a timely appeal.1 Because he did not adequately preserve his objection to the sentence, plain error review applies. Although " plain error" occurred, we are not compelled to reverse under the circumstances here presented. Sentence affirmed.

          1. Standard of Review

          When an error is preserved by specific objection in the trial court, this court reviews the district court's findings of fact for clear error and its application of the federal sentencing guidelines de novo. United States v. Gharbi, 510 F.3d 550, 554 (5th Cir.2007). Accordingly, we review the district court's characterization of a defendant's prior conviction de novo. United States v. Balderas-Rubio, 499 F.3d 470, 472 (5th Cir.2007), cert. denied, 552 U.S. 1215, 128 S.Ct. 1304, 170 L.Ed.2d 123 (2008).

          If, however, the defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error. FED. R. CRIM. P. 52(b); United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir.2009); United States v. Hernandez-Martinez, 485 F.3d 270, 272 (2007); United States v. Lopez, 923 F.2d 47, 50 (5th Cir.1991). Plain error review requires four determinations: whether there was error at all; whether it was plain or obvious; whether the defendant has been substantially harmed by the error; and whether this court should exercise its discretion to correct the error in order to prevent a manifest miscarriage of justice. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Infante, 404 F.3d 376, 394 (5th Cir.2005).

         The purpose of plain error review is to instill in litigators the importance of preparing adequately before appearing in the trial court and, as necessary, clarifying issues to that court. Timely, adequate objections allow the trial court to rule in the first instance and, if necessary, correct itself without spawning an appeal. This standard usually shields the district court from reversal because of error that was unwittingly committed, because not brought to its attention. The standard also shields this court from ruling on issues that have been insufficiently vetted below. Plain error review implicitly acknowledges that, in many cases, an appeal represents the triumph of hindsight, as a party attempts to shore up objections ineffectively lodged in the trial court, or not lodged at all, by adducing after-the-fact support for its position. Thus, to afford the standard of harmless error, FED.R.CRIM.P. 52(a), to a defendant who makes a vague objection in the trial court, followed by a substantial and specific legal brief in the appellate court, would undermine the orderliness intended by these tiered standards.

          This appeal exemplifies the lack of orderliness caused by a vague trial court objection. Chavez-Hernandez, represented by the Federal Public Defender, filed the following written objection to the

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PSR's recommendation of a 16-level enhancement for a crime of violence:

Mr. Chavez-Hernandez respectfully objects ... on the basis that the Government has failed to present competent evidence that would justify such an enhancement. Moreover, this is not a crime of violence nor an aggravated felony.

         Counsel had two opportunities to explain the substance of this objection to the trial court. At the first sentencing hearing, he said the court had to rule on his objection to the 16-level crime of violence enhancement, but he presented no further support for the objection. A problem arose concerning proof of the documents and judgment underlying Chavez-Hernandez's Florida conviction, and the hearing was continued for more than a week. When the second hearing took place, defense counsel made two requests of the court— to consider a downward departure and run the sentence concurrently with an anticipated probation violation sentence in Florida— and the court initiated a downward departure for criminal history. Other than commenting, " Your Honor, you know that I had objections to the 16-level enhancement ...," defense counsel again failed to articulate why he objected to the enhancement. When the court stated its characterization of the prior crime as a " plus 16" enhancement, defense counsel neither objected nor said anything else about it.

         On appeal, Appellant's brief raises one issue: the propriety of treating the Florida guilty plea conviction as a crime of violence. This issue receives six full pages of legal briefing. Appellant notes that to justify the enhancement, the government had to prove that he admitted, in legally acceptable form, his commission of certain acts. Whether the government offered proof sufficient for this purpose is challenged by Chavez-Hernandez according to the discussion in Shepard v. United States and its numerous progeny. 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Alternatively, Chavez-Hernandez denies that the underlying offense of conviction involved an element of " use of force" or the enumerated generic crimes of either sexual abuse of a minor or statutory rape. His brief takes four pages to explain why various authorities of this court, none directly on point, exclude the Florida statute from the ambit of the two generic crimes despite its caption, " Sexual Activity with a Minor." None of this argument, nor any of the case law, was pointed out to the district court.

         The government's brief contains nine pages of rebuttal to these arguments on the merits.

         In this circuit, the government, defense counsel, probation officers, and the district and circuit judges are vividly aware of the difficulties this court has had in interpreting the " crime of violence" guideline, especially with respect to crimes against minors and children. See, e.g., United States v. Olalde-Hernandez, 630 F.3d 372 (5th Cir.2011); United States v. Izaguirre-Flores, 405 F.3d 270 (5th Cir.2005); United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004) (en banc); United States v. Zavala-Sustaita, 214 F.3d 601 (5th Cir.2000). The Sentencing Commission has tried, with limited success, to ameliorate the difficulties, in part by responding to decisions of this and other appellate courts. Suffice it to say that enhancing a base offense level for a crime of violence committed against a minor continues to raise some of the most vexing questions in federal sentencing.

          Based on what little was said and written in the trial court here, the judge cannot have intuited that Chavez-Hernandez, who admitted he had an ongoing sexual

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relationship with the victim " until her mother put me in jail," would be making an extended legal argument against the enhancement. In fact, the Federal Public Defender acknowledged during the sentencing hearing that the victim was fourteen years old. Like most trial courts, the judge had carefully reviewed the sentencing papers before him, even to the point of criticizing the probation officer for having an incomplete file on the Florida conviction and sua sponte issuing a downward adjustment of the guideline range. In sum, this case is dramatically different from Izaguirre-Flores, in which the interpretation of a defendant's prior offense involving a minor received " extensive briefing by the parties and consideration by the district court." Izaguirre-Flores, at 272.

         For all of these reasons, it is unfair to the government and the district court, and it would severely undermine procedural regularity, if we were to apply harmless error review to the purely conclusional...

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