United States v. Narez-Garcia

• Decision Date: 31 March 2016
• Docket Number: 15–50077.,Nos. 15–50076,s. 15–50076
• Citation: 819 F.3d 146
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jose Luis NAREZ–GARCIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

819 F.3d 146

UNITED STATES of America, Plaintiff–Appellee

v.Jose Luis NAREZ–GARCIA, Defendant–Appellant.

Nos. 15–50076

15–50077.

United States Court of Appeals, Fifth Circuit.

March 31, 2016.

Joseph H. Gay, Jr., Asst. U.S. Atty., Mara Asya Blatt, Esq., Asst. U.S. Atty., Jennifer Sheffield Freel, Asst. U.S. Atty. (argued), U.S. Attorney's Office, Austin, TX, for Plaintiff–Appellee.

Judy Fulmer Madewell, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Kristin Michelle Kimmelman, Assistant Federal Public Defender (argued), Federal Public Defender's Office, San Antonio, TX, for Defendant–Appellant.

Before CLEMENT, GRAVES, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Jose Luis Narez–Garcia pleaded guilty to illegal reentry following deportation. At sentencing, Narez–Garcia objected to the application of an eight-level enhancement based on his prior Arkansas conviction of aggravated assault on a household member. Narez–Garcia argued that his Arkansas conviction did not constitute an aggravated felony because the offense did not have as an element the use of force or involve a substantial risk that force would be used against a person. The district court noted that Narez–Garcia had been convicted of two offenses: aggravated assault on a household member and domestic battery in the third degree, second offense. The district court overruled Narez–Garcia's objection to the eight-level enhancement and concluded that the domestic battery offense qualified as an aggravated felony for purposes of the Guidelines. Narez–Garcia was sentenced within the Guidelines to 33 months of imprisonment and a three-year term of supervised release. Narez–Garcia appeals the application of the eight-level enhancement, contending that the district court plainly erred. Because the district court did not plainly err in applying the eight-level enhancement, we AFFIRM.

I.

In 2014, United States Border Patrol agents found Narez–Garcia, a Mexican citizen, near Sierra Blanca, Texas. At the time, Narez–Garcia was on supervised release for a prior illegal reentry conviction. He had not obtained permission to reapply for admission. He was charged with and pleaded guilty to illegal reentry into the United States after removal, in violation of 8 U.S.C. § 1326(a)(1).

A probation officer prepared a Presentence Investigation Report ("PSR") stating that Narez–Garcia's base offense level was eight. The probation officer recommended an eight-level increase for an aggravated felony, under U.S.S.G. § 2L1.2(b)(1)(C). Narez–Garcia was previously convicted in Arkansas of aggravated assault on a household member and domestic battery in the third degree, second offense. The probation officer indicated that the conviction for aggravated assault on a household member qualified as an aggravated felony, thus mandating the eight-level increase. After applying a three-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(b), Narez–Garcia's total offense level was 13. Based on Narez–Garcia's offense level and his criminal history category of VI, the Guidelines range for imprisonment was from 33 to 41 months.

Before sentencing, Narez–Garcia objected to the eight-level increase in the PSR, arguing that the Arkansas aggravated assault offense was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)¹ because it did not qualify as a crime of violence. Specifically, Narez–Garcia argued that because the aggravated assault offense does not have the use of force as an element or involve a substantial risk that force will be used against a person or property, it was not a crime of violence.

At sentencing, the district court noted that Narez–Garcia had been convicted of two counts in Arkansas: one for aggravated assault on a family member or household member and the other for domestic battery in the third degree, second offense. The Arkansas Judgment and Disposition Order ("Arkansas Judgment" or "Judgment") showed the sentences for the two offenses as:

Period of Confinement:	months.
Suspended Imposition of Sentence:	72	months.
Period of Probation:	12	months.

The district court acknowledged the possibility that the aggravated assault conviction did not qualify as an aggravated felony but questioned Narez–Garcia's counsel regarding the domestic battery conviction. Narez–Garcia's counsel posited the same objection to the domestic battery conviction, arguing that it did not require that actual, physical force be imposed; thus, the domestic battery conviction was not a crime of violence. The district court overruled the objection and held that the domestic battery conviction qualified as an aggravated felony.

The district court refused Narez–Garcia's request for a variance below the Guidelines and sentenced him to 33 months' imprisonment and a three-year term of supervised release. The court also revoked Narez–Garcia's prior supervised release and sentenced him to 18 months' imprisonment to run consecutively with his 33–month sentence. Narez–Garcia appealed.

II.

We review a district court's interpretation or application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). If preserved for appeal, the district court's characterization of a prior offense as an aggravated felony or as a crime of violence is a question of law that we review de novo. See United States v. Izaguirre–Flores, 405 F.3d 270, 272 (5th Cir.2005) (per curiam). If a challenge is not preserved for appeal, we review for plain error. United States v. Juarez, 626 F.3d 246, 253–54 (5th Cir.2010).

The parties dispute whether Narez–Garcia properly preserved his only challenge on appeal—that the district court erred in applying the eight-level enhancement because his Arkansas convictions did not result in a term of imprisonment of at least one year, thus falling outside 8 U.S.C. § 1101(a)(43)(F)'s definition of an aggravated felony.

"A party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review." United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir.2009) (internal quotation marks omitted). "[A]n argument is preserved when the basis for objection presented below gave the district court the opportunity to address the gravamen of the argument presented on appeal." United States v. Garcia–Perez, 779 F.3d 278, 281–82 (5th Cir.2015) (internal quotation marks omitted).

The government contends that Narez–Garcia's appeal is subject to plain error review because he failed to raise his argument that he was not sentenced to at least one year of imprisonment in the district court. Narez–Garcia admits that in the district court "he focused on the part of the aggravated-felony crime-of-violence definition having to do with the use of force as an element" and "did not focus on the part of the aggravated-felony crime-of-violence definition requiring a term of imprisonment of at least one year." Even so, Narez–Garcia argues that he adequately objected to both of his prior convictions being used for the eight-level aggravated felony enhancement.

Narez–Garcia's argument is unavailing. Because Narez–Garcia did not object to the enhancement on the specific ground he now raises on appeal—the one-year-term-of-imprisonment requirement—and instead raised only his use-of-force argument, this court's review is limited to plain error.² See Juarez, 626 F.3d at 253–54 (reviewing for plain error where defendant objected to an enhancement on grounds different from those raised on appeal).

Plain error review involves four steps. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).

First, there must be an error or defect—some sort of [d]eviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.

Id. (internal quotation marks and citations omitted).

III.

Narez–Garcia argues that, even under plain error review, the district court plainly erred in applying the eight-level increase under the U.S.S.G. § 2L1.2(b)(1)(C) because his Arkansas conviction for domestic battery does not meet the definition for an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).³ Narez–Garcia contends that the Arkansas state court did not impose a period of confinement; the state court left this blank empty. Instead, it imposed 72 months, suspended imposition of sentence, and a period of probation of 12 months. Narez–Garcia argues that the state court thus did not impose any sentence of imprisonment, let alone a one-year term, meaning that the conviction does not qualify as an aggravated felony. Instead, he contends, his sentence should be viewed as imposing probation, disqualifying it as an aggravated felony under this court's precedent.

Assuming—without deciding—that the district court erred in classifying Narez–Garcia's Arkansas conviction as an aggravated felony, that error was not "clear or obvious." Puckett, 556 U.S. at 135, 129 S.Ct. 1423. Plain error is error that is so clear or obvious that "the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it." United States v....