United States v. Duque–Hernandez, 11–40642

Citation710 F.3d 296
Decision Date28 February 2013
Docket NumberNo. 11–40642,Summary Calendar.,11–40642
PartiesUNITED STATES of America, Plaintiff–Appellee v. Diego DUQUE–HERNANDEZ, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

OPINION TEXT STARTS HERE

Carmen Castillo Mitchell, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for PlaintiffAppellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for DefendantAppellant.

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

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Diego Duque–Hernandez pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b), and was sentenced to 51 months of imprisonment—the low end of his Guidelines range—and three years of supervised release. He appeals his sentence, arguing that the district court erred by applying a twelve-level adjustment to his base offense level for his previous commission of a drug trafficking offense.

Under § 2L1.2(b)(1)(B) of the Sentencing Guidelines, a twelve-level adjustment to a defendant's base offense level is applied if the defendant was previously convicted of “a felony drug trafficking offense for which the sentence imposed was 13 months or less.” A drug trafficking offense is defined as “offense under federal, state, or local law that prohibits the manufacture,import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense” U.S.S.G. § 2L1.2 cmt. Prior convictions involving the attempt to commit such offenses are included within this definition. § 2L1.2 cmt.

Duque–Hernandez was previously convicted of § 58–37–8(1)(a)(ii) of the Utah Criminal Code, which makes it a felony “to knowingly and intentionally: ... distribute a controlled or counterfeit substance, or to agree, consent, offer, or arrange to distribute a controlled or counterfeit substance.” The probable cause statement on the second page of the charging document, which was sworn to by a law enforcement officer, indicates that “the defendant offered to sell [an undercover officer] a substance which was represented to be cocaine.” Noting that the Guidelines were amended in 2009 to include offers of sale as drug trafficking offenses under § 2L1.2(b)(1)(B), the presentence report recommended applying the adjustment on that basis, and the district court adjusted upward Duque–Hernandez's base offense level accordingly.

Because Duque–Hernandez did not object to the application of the adjustment, our review is for plain error. United States v. Mondragon–Santiago, 564 F.3d 357 (5th Cir.2009). To demonstrate plain error, he must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.; see also United States v. Escalante–Reyes, 689 F.3d 415, 425 (5th Cir.2012) (en banc) (declining “to adopt a blanket rule that once prejudice is found under the [third plain error prong], the error invariably requires correction”). The Supreme Court recently reiterated the importance of this independent fourth assessment we must make before correcting an error urged on appeal for the first time. See Henderson v. United States, 568 U.S. ––––, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013) (emphasizing that the plain error rule “contains other screening criteria” in addition to the “error” and “plainness” requirements).

The objection Duque–Hernandez failed to raise at a timely point concerns the district court's adjustment of his base offense level, pursuant to § 2L1.2(b)(1)(B), on the basis of his previous conviction under § 58–37–8(1)(a)(ii) of the Utah Criminal Code. He contends that the statute of conviction encompasses conduct that falls outside the definition of a “drug trafficking offense” under § 2L1.2(b)(1)(B), and suggests that the probable cause statement included within his information is not Shepard-approved and should not have been relied upon to support the application of the adjustment.

Concluding that the sentencing error, if any, does not seriously affect the fairness, integrity, or public reputation of judicial proceedings, we decline to exercise our discretion to correct it. See United...

To continue reading

Request your trial
8 cases
  • United States v. Becerra
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 6 Ottobre 2020
    ...[the court] review[s] for plain error." United States v. Halverson , 897 F.3d 645, 657 (5th Cir. 2018) (citing United States v. Duque–Hernandez , 710 F.3d 296, 298 (5th Cir. 2013) ). To establish plain error, there must be (1) "a legal error or defect that has not been intentionally abandon......
  • United States v. Vargas
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Dicembre 2021
    ...because it does not seriously affect the fairness, integrity, or public reputation of the trial. See, e.g., United States v. Duque-Hernandez , 710 F.3d 296, 298 (5th Cir. 2013). As the majority opinion notes, Vargas's counsel affirmatively stated that the Presentence Investigation Report ca......
  • United States v. Halverson, 17-40661
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 30 Luglio 2018
    ...Halverson did not object to this condition of his supervised release at sentencing, we review for plain error. United States v. Duque–Hernandez , 710 F.3d 296, 298 (5th Cir. 2013). To find plain error we first must find a legal error or defect that has not been intentionally abandoned—i.e.,......
  • United States v. Vargas
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Dicembre 2021
    ...it does not seriously affect the fairness, integrity, or public reputation of the trial. See, e.g., United States v. Duque-Hernandez, 710 F.3d 296, 298 (5th Cir. 2013). As the majority opinion notes, Vargas's counsel affirmatively stated that the Presentence Investigation Report calculated ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT