U.S. v. Villegas

• Decision Date: 17 March 2005
• Docket Number: No. 03-21220.,03-21220.
• Citation: 404 F.3d 355
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fortino Saucedo VILLEGAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

404 F.3d 355

UNITED STATES of America, Plaintiff-Appellee, v. Fortino Saucedo VILLEGAS, Defendant-Appellant.

No. 03-21220.

United States Court of Appeals, Fifth Circuit.

March 17, 2005.

James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Thomas A. Martin, Law Offices of Thomas A. Martin, Houston, TX, for Villegas.

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

Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:

Defendant-Appellant Fortino Saucedo Villegas pled guilty and was sentenced in the district court before the United States Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). This appeal requires us to re-examine the proper standard of review to employ in our resolution of a claim that the district court improperly applied the Sentencing Guidelines in calculating the sentencing range under the previously mandatory, now advisory, sentencing guideline regime. We re-examine our standards in order to determine the possible effect, if any, of Booker on our previously announced standards in reviewing such claims.

Villegas pled guilty to being an alien in unlawful possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). At sentencing, the district court imposed a four-level sentence enhancement under United States Sentencing Guidelines § 2K2.1(b)(5) (2003) because it found by a preponderance of the evidence that Villegas possessed a firearm in connection with his use of fraudulent immigration documents. Villegas now appeals the sentence enhancement. We VACATE Villegas's sentence and REMAND for resentencing.

I. BACKGROUND

A. Factual Background

On April 26, 2003, Fortino Saucedo Villegas, a Mexican national unlawfully present in the United States, attended a gun show at the Pasadena Convention Center in Pasadena, Texas. At the show, Villegas approached Roland Kulish, who was operating a booth at the show, and he expressed an interest in purchasing a Colt semi-automatic pistol. Kulish informed Villegas that he did not have any at the show but that he did have some at his store and would bring one to the next gun show, scheduled for the following weekend. The next week, Kulish returned to the gun show and brought the firearm Villegas had requested. Villegas also returned to the gun show and sought out Kulish to purchase the firearm. According to Kulish and his wife, Villegas submitted three forms of identification: (1) a Texas driver's license, no. 19476405; (2) a Texas identification card, no. 12088537; and (3) a resident alien card, no. 12088537. On the ATF form 4473, Villegas stated that he was a resident alien. In response to line eleven, which asks for an "INS-issued alien number or admission number," Villegas listed 12088537. The words "pictured Texas resident I.D. card" were written directly above this response. Kulish sold the handgun to Villegas on May 3, 2003.

On June 5, 2003, the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") received information from the National Instant Check System ("NICS") about Villegas's firearm purchase. A check with the Bureau of Immigration and Customs Enforcement revealed Villegas's criminal immigration history.¹ Based on this information, the ATF obtained a search warrant for the residence that Villegas had listed on his ATF forms.

On June 26, 2003, ATF agents executed the search warrant. When the agents arrived Villegas was asleep in his bedroom. The agents found several firearms, ammunition, and a resident alien card suspected to be counterfeit. A search of Villegas's automobile revealed receipts for an AK-47 and the Colt handgun he had purchased from Kulish. The agents placed Villegas under arrest and advised him of his constitutional rights. He waived his right to remain silent and admitted that he was a Mexican citizen illegally present in the United States. He also acknowledged that the gun on the headboard belonged to him and claimed he kept it for protection. Further, he admitted to purchasing the Colt handgun from Kulish. He stated that he had taken it to a gunsmith to have the finish changed from black to chrome.

B. Procedural Background

On July 24, 2003, a grand jury indicted Villegas for "being an alien illegally and unlawfully in the United States, knowingly and unlawfully possess [ing] in and affecting interstate or foreign commerce, one or more firearms .... [i]n violation of Title 18, United States Code, Sections 922(g)(5) and 924(a)(2)." On September 8, 2003, Villegas pled guilty to this charge. In the pre-sentence investigation report ("PSR"), the probation officer recommended that Villegas receive a four-level sentence enhancement pursuant to UNITED STATES SENTENCING GUIDELINES ("U.S.S.G." or the "Guidelines") § 2K2.1(b)(5) for using or possessing a firearm in connection with another felony offense. The probation officer stated that "[t]he defendant falsified an ATF Form 4473 and possessed a counterfeit resident alien card for identification in order to illegally obtain possession of the Colt .38 caliber pistol...." The United States Code makes it a felony to create or possess fraudulent immigration documents. 18 U.S.C. § 1546. Thus, the probation officer reasoned, Villegas used a firearm in connection with another felony.

Prior to sentencing, Villegas filed written objections to the PSR, arguing that he did not in fact present Kulish with a counterfeit resident alien card. Villegas's factual assertions notwithstanding, the district court found that it was more likely than not that Villegas used a counterfeit resident alien card to obtain the Colt handgun. Thus, the district court accepted the PSR's recommendation of the four-level enhancement. The district court sentenced Villegas to twenty-one months imprisonment. Villegas now appeals, arguing that: (1) the district court erred as a matter of law in applying a four-level enhancement for his use of a firearm in connection with a felony; and (2) his Sixth Amendment rights were violated because the government did not bear the burden of proving beyond a reasonable doubt that he used a counterfeit resident alien card.

II. STANDARD OF REVIEW

Villegas did not raise in the district court either his legal objection to the imposition of the four-level enhancement or his Sixth Amendment claim. Because of the lack of objections below, this court's review is for plain error. See, e.g., United States v. Aderholt, 87 F.3d 740, 743 (5th Cir.1996); cf. Booker, 125 S.Ct. at 769 (instructing appellate courts to apply ordinary prudential doctrines such as plain-error review). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights. United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Mares, 402 F.3d 511, ___, 2005 WL 503715, at *8 (5th Cir. March 4, 2005). "If all three conditions are met an appellate court may then exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Mares, 402 F.3d at ___, 2005 WL 503715, at *8 (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

In resolving Villegas's claim that the district court misapplied § 2K2.1(b)(5) of the Guidelines to enhance his sentence, we must first address the possible effect of Booker on our standard of review. It is beyond question that before Booker, this court would have reviewed the district court's interpretation and application of the Guidelines de novo. E.g., United States v. Martinez-Mata, 393 F.3d 625, 627 (5th Cir.2004); United States v. Deavours, 219 F.3d 400, 402 (5th Cir.2000); United States v. Upton, 91 F.3d 677, 687 (5th Cir.1996); United States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir.1993). The initial question presented here is whether this standard was somehow changed by Booker's excision of § 3742(e), which had statutorily set forth the standards for reviewing sentencing decisions, and its declaration that the remaining provisions of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., imply a standard of unreasonableness. We conclude that when a district court has imposed a sentence under the Guidelines, this court continues after Booker to review the district court's interpretation and application of the Guidelines de novo. We do not speak in this opinion, however, to the situation in which a district court elects to exercise its post-Booker discretion to impose a non-Guidelines sentence.

The Supreme Court in Booker instructed that although the Guidelines are now advisory rather than mandatory, § 3553(a) of Title 18 still requires the district courts to consider the Guidelines when determining a defendant's sentence. See Booker, 125 S.Ct. at 764-65, 767; Mares, 402 F.3d at ___ - ___, 2005 WL 503715, at *6-7; see also 18 U.S.C.A. § 3553(a)(4) (Supp.2004).² A number of other circuits have determined that the requirement that district courts still consider the Guidelines means that Booker did not alter the standard for reviewing a district court's interpretation and application of the Guidelines. See United States v. Doe, 398 F.3d 1254, 1257-58 & n. 5 (10th Cir.2005); United States v. Hazelwood, 398 F.3d 792, 794-95, 800-01 (6th Cir.2005); see also United States v. Hughes, 401 F.3d 540, 546-47, 556-57 (4th Cir.2005) (on panel reh'g) (holding that district courts post-Booker must still correctly calculate the sentencing range under the Guidelines; reviewing district court's application of the Guidelines de novo). In Doe, the district court calculated the Guidelines range but decided to depart upwardly. The Tenth Circuit determined that the district court had erred as a matter of law in upwardly departing because it did not fully take into account the...