U.S. v. Valenzuela-Quevedo, 03-41754.

• Decision Date: 25 April 2005
• Docket Number: No. 03-41754.,03-41754.
• Citation: 407 F.3d 728
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rene VALENZUELA-QUEVEDO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

407 F.3d 728

UNITED STATES of America, Plaintiff-Appellee, v. Rene VALENZUELA-QUEVEDO, Defendant-Appellant.

No. 03-41754.

United States Court of Appeals, Fifth Circuit.

April 25, 2005.

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Paula Camille Offenhauser (argued), and James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow (argued), Richard Bruce Gould, Houston, TX, for Defendant-Appellant.

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

Before HIGGINBOTHAM, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Rene Valenzuela-Quevedo appeals his conviction and sentence for possession with intent to distribute a controlled substance and conspiracy. For the reasons discussed below, we affirm the district court's judgment.

I. Background

In September of 2002, Valenzuela-Quevedo was indicted for one count of possession with intent to distribute more than 1000 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and conspiracy to violate those statutes. Valenzuela-Quevedo pled guilty. During sentencing, the district court determined that Valenzuela-Quevedo was a "career offender" for purposes of the United States Sentencing Guidelines because Valenzuela-Quevedo had a prior drug-related conviction and a prior violent felony conviction. See U.S.S.G. § 4B1.1(a).

During sentencing, Valenzuela-Quevedo objected to his designation as a career offender. He argued that his prior Utah conviction, one of the convictions on which the district court relied in designating him a career offender, was not a crime of violence for purposes of § 4B1.1 and therefore not relevant to a determination of his career offender status.

Valenzuela-Quevedo's prior Utah conviction was for one count of discharging a firearm from a vehicle. Following the language of the applicable statute, see Utah Code Ann. § 76-10-508, the information specifically charged in Count 1 that he

did discharge a dangerous weapon or firearm from an automobile or other vehicle, from, upon, or across a highway, in the direction of any person or persons, knowing or having reason to believe that any person may be endangered; and/or with intent to intimidate or harass another, did discharge a dangerous weapon or firearm from an automobile or other vehicle, from, upon, or across a highway, in the direction of any vehicle.

Valenzuela-Quevedo had pled guilty to the charges.

Finding the prior Utah conviction to be a crime of violence, the district court designated Valenzuela-Quevedo a career offender. Thus, under U.S.S.G. § 4B1.1, the appropriate base offense level was 37, and the appropriate criminal history category was VI, which resulted in a penalty range of 262 to 327 months imprisonment. The district court denied Valenzuela-Quevedo's motion for a downward departure based on an over-represented criminal history but applied a downward departure of three points for acceptance of responsibility. See U.S.S.G. § 3E1.1(a) & (b).

II. Discussion

Valenzuela-Quevedo challenges his conviction and sentence on three grounds. First, he argues that 21 U.S.C. § 841(a) and (b), under which he was convicted, are unconstitutional. Second, he claims that the district court erred in sentencing him as a career offender. Finally, he challenges his U.S. Sentencing Guidelines-imposed sentence based on United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We treat each in turn.

A. Constitutionality of 21 U.S.C. § 841

For the first time on appeal, Valenzuela-Quevedo claims that the provisions found at 21 U.S.C. § 841(a) and (b) are facially unconstitutional. He asserts that the drug type and quantity gradations of § 841(b) are to be viewed as sentencing factors rather than as elements of a separate offense. He claims that, as such, they are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Valenzuela-Quevedo correctly acknowledges that we rejected this very argument in United States v. Slaughter, 238 F.3d 580 (5th Cir.2000), where we treated the gradations as elements of the crime. There, we upheld a sentence where the drug type and quantity had been charged and found by a jury as elements of the crime. Here, the drug type and amount were charged in the indictment and admitted by the defendant. Thus, Valenzuela-Quevedo's sentence was properly based on the gradations provided for in § 841(b).

B. Applicability of Career Offender Status

Next, Valenzuela-Quevedo claims that the district court erred in concluding that his prior Utah conviction was a crime of violence for purposes of § 4B1.1 of the U.S. Sentencing Guidelines. Consequently, he argues, he cannot be designated a career offender.

This Court reviews de novo a district court's interpretation and application of the Sentencing Guidelines. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc).¹

Section 4B1.1 of the United States Sentencing Guidelines provides that a defendant is a career offender if

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a).

The parties do not dispute that Valenzuela-Quevedo was over 18 when he committed the instant offense, that the instant offense (possession with intent to distribute over 1,000 kilograms of marihuana) is a felony, nor that Valenzuela-Quevedo has a prior controlled substance felony offense. Thus, we must determine whether the prior Utah conviction is a crime of violence. We conclude that it is.

A crime of violence is any offense punishable by imprisonment for a term exceeding one year and "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) ... involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a). Application Note 1 to § 4B1.2 advises that an offense may fulfill the requirements of § 4B1.2(a) if "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted..., by its nature, presented a serious potential risk of physical injury to another." Thus, "a categorical approach is taken to determine whether the charged count of conviction, by its nature, presented a serious potential risk of physical injury." United States v. Insaulgarat, 378 F.3d 456, 467 (5th Cir.2004). We look only to the face of the indictment in deciding whether a crime presents a serious potential risk of injury to a person. Charles, 301 F.3d at 314. Injury need not be certain, but "it must be clear from the indictment that the crime itself or the conduct specifically charged posed this serious potential risk." Id.

The information sets forth two alternative ways in which Valenzuela-Quevedo may have violated the Utah statute. Either he (1) discharged a weapon from a vehicle in the direction of any person, or he (2) "with intent to intimidate or harass another, did discharge a dangerous weapon or firearm from an automobile or other vehicle, from, upon, or across a highway, in the direction of any vehicle." Where the defendant's actual conduct is not clear from the face of the charging document, we proceed "under the assumption that his conduct constituted the least culpable act satisfying the count of conviction." United States v. Houston, 364 F.3d 243, 246 (5th Cir.2004). Here, then, we assume that Valenzuela-Quevedo violated the Utah statute by the latter alternative mentioned in the information.

We agree with the district court that such behavior poses "a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). Firing a weapon from, on, or across a highway at another is a dangerous activity, especially when the motivation for the act is a desire to intimidate or harass. Of course, such activity risks the life of any person occupying the vehicle at which the perpetrator fires. In addition to that risk, such an action endangers the lives of innocent bystanders and drivers, whose presence is likely given the public accessibility of highways. Moreover, even in a scenario where the perpetrator believes that there are no bystanders present and that the vehicle at which he is firing is empty, it is ultimately impossible to know for certain whether a vehicle is unoccupied, especially when shooting from another vehicle as charged in Valenzuela-Quevedo's information. Cf. United States v. Weinert, 1 F.3d 889, 891 (9th Cir.1993) (finding that firing a weapon at an inhabited dwelling regardless of whether the residence was occupied was a violent crime because it presented a risk to neighbors, bystanders, and law enforcement authorities that might respond); United States v. Cole, 298 F.3d 659, 662 (7th Cir.2002) (stating in dictum that "discharging a firearm is an inherently risky act").

C. Applicability of Booker

Finally, in supplemental briefing, Valenzuela-Quevedo challenges the district court's use of the United States Sentencing Guidelines, which were found unconstitutional as mandatory guidelines in the Supreme Court's opinion in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), issued during the pendency of this appeal. Because he did not raise this argument in the district court, we review this argument for plain error. United States v. Mares, 402 F.3d 511, 513-14 (5th Cir.2005). Under that standard of review, we may reverse only if the appellant demonstrates "(1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (citation and internal quotation marks omitted). "If all...