United States v. Rodarte-Vasquez, 04-50224.

• Decision Date: 23 May 2007
• Docket Number: No. 04-50257.,No. 04-50224.,04-50224.,04-50257.
• Citation: 488 F.3d 316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roman RODARTE-VASQUEZ, also known as Carlos Carrillo-Lopez, also known as Roman Rodriguez-Meza, Defendant-Appellant. and United States of America, Plaintiff-Appellee, v. Juan A. Ramirez-Ramirez, also known as Juan Ramirez-Rodriguez, also known as Juan Anatalio Ramirez-Ramirez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

488 F.3d 316

UNITED STATES of America, Plaintiff-Appellee, v. Roman RODARTE-VASQUEZ, also known as Carlos Carrillo-Lopez, also known as Roman Rodriguez-Meza, Defendant-Appellant. and United States of America, Plaintiff-Appellee, v. Juan A. Ramirez-Ramirez, also known as Juan Ramirez-Rodriguez, also known as Juan Anatalio Ramirez-Ramirez, Defendant-Appellant.

No. 04-50224.

No. 04-50257.

United States Court of Appeals, Fifth Circuit.

May 23, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., Mara A. Blatt (argued), San Antonio, TX, for U.S.

M. Carolyn Fuentes, Lucien B. Campbell, Fed. Pub. Def., Henry Joseph Bemporad (argued), San Antonio, TX, for Defendant-Appellant.

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

Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Roman Rodarte-Vasquez and Juan A. Ramirez-Ramirez (defendants) pleaded guilty in 2003 in unrelated cases to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. In this consolidated appeal, they primarily contend their Sentencing Guidelines' offense-level enhancements, imposed as a result of their prior alien-smuggling convictions, are improper in the light of United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding, inter alia, Sixth Amendment right to jury trial requires "[a]ny fact (other than a prior conviction) . . . necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt"). They also contend: the district courts' application of the 2003 version of the Guidelines constituted an ex post facto violation; and 8 U.S.C. § 1326(b)'s sentence-enhancing provisions are unconstitutional, in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Resentencing is required. But, under the post-Booker advisory guidelines regime, the new sentences can conceivably be the same as those being vacated. CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING.

I.

In separate cases before different district judges, Rodarte and Ramirez pleaded guilty in 2003, without written plea agreements, to illegal reentry after deportation. Rodarte had been deported in 1992, after being convicted of transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(B); Ramirez, in 1990, after being convicted, inter alia, of harboring illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(C) (collectively, either prior convictions or prior offenses).

For defendants' sentencing in 2003, the Presentence Investigation Report (PSR) for each used the 2003 version of the Guidelines and, for those prior convictions, recommended a 16-level enhancement, pursuant to § 2L1.2(b)(1)(A)(vii) (applicable "[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . an alien smuggling offense"). Rodarte's recommended Guidelines' sentencing range was 46 to 57 months; Ramirez', 57 to 71 months.

Defendants filed similar objections to the PSR, contending, inter alia, the enhancement was improper under the "categorical approach", first articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That approach limits a sentencing court's determination of whether a prior offense qualifies for a sentencing enhancement to the elements of the offense, rather than the facts underlying the conviction. At the time, this contention (as Ramirez recognized in district court) was contrary to United States v. Sanchez-Garcia, 319 F.3d 677, 678 (5th Cir.2003) (rejecting the "categorical approach" for purposes of applying the 16-level enhancement under § 2L1.2(b)(1)(A)(vii)). (Sanchez-Garcia is discussed infra.) Accordingly, they maintained, inter alia: the 2002 version of the Guidelines (2002 Guidelines) was in effect at the time of their illegal-reentry offenses; the 2002 Guidelines restricted the enhancement only to those prior alien-smuggling offenses "committed for profit"; the statutes under which they received their prior convictions did not contain a "committed for profit" element; the 2003 version (2003 Guidelines), however, applied the enhancement to prior alien-smuggling offenses, the "committed for profit" element having been removed; and, therefore, the 2002 Guidelines should apply because use of the 2003 Guidelines constituted an ex post facto violation.

Defendants' separate sentencing hearings in 2003 were conducted prior to Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ("`[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt'" (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348)), and Booker, 543 U.S. at 244, 125 S.Ct. 738 (inter alia, extending Blakely to the Guidelines). Their ex post facto objections were overruled.

At Rodarte's sentencing, the district judge stated the 2003 amendment to the Guidelines, which removed the "committed for profit" element, was "simply for clarification [and] . . . [did not] change the underlying guideline". At Ramirez' sentencing, another district judge stated that, particularly in the light of Ramirez' offense reports, the 16-level increase was appropriate under either the 2002 or 2003 Guidelines. At each sentencing, the district judge relied on underlying offense reports for the prior convictions to find the offenses were "committed for profit". It appears the district judges made the "committed for profit" finding because the 2003 Guidelines' commentary, explaining the amendment to the 2002 Guidelines, states: "[The new] definition [for `alien smuggling offense'] generally is consistent with the guideline's previous terminology of `alien smuggling offense committed for profit,' and results in a 16 level increase only for the most serious of such offenses". U.S.S.G. app. C-II, amend. 658 at 401 (2003).

Rodarte and Ramirez were respectively sentenced, inter alia, to 46 and 57 months' imprisonment for their illegal-reentry convictions. For Rodarte, an eight-month consecutive sentence for revocation of supervised release was also imposed, resulting in a 54-month total sentence.

II.

Booker was decided while these consolidated appeals were pending in our court. Therefore, they were held pending a post-Booker decision in United States v. Loredo-Torres, 164 Fed.Appx. 523 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2343, 164 L.Ed.2d 857 (2006), on remand from the Supreme Court for further consideration in the light of Booker. Loredo-Torres was decided, however, without providing guidance on whether Booker abrogated our court's earlier-described holding in Sanchez-Garcia. Because the parties' initial briefs were filed pre-Booker, they were directed to submit supplemental briefs, addressing the implications of Booker on Sanchez-Garcia. That issue is addressed before turning, inter alia, to the ex post facto issue.

A.

Before considering whether, in the light of Booker, the enhancements were erroneously imposed, we must address whether such error was preserved. As discussed below, that error was not preserved. Therefore, only plain-error review is accorded defendants' Bookerissue.

1.

In their supplemental briefs, consistent with their reliance on Blakely in their initial briefs, defendants primarily contend they should be resentenced in the light of Booker because the district courts' finding their prior alien-smuggling offenses were "committed for profit" constituted Sixth Amendment error. The Government maintains defendants' objections at sentencing were insufficient to preserve Booker error. Although Rodarte and Ramirez acknowledge their objections in district court for this issue mentioned neither the Sixth Amendment nor Apprendi, they contend their Taylor-based ex post facto objections adequately preserved Booker error.

In order to preserve Booker error for, as here, a pre-Booker sentence, a defendant need not explicitly cite Apprendi, Blakely, or the Sixth Amendment. See United States v. Akpan, 407 F.3d 360, 376 (5th Cir.2005). "If a defendant voices [an] objection[] sufficient to apprise the sentencing court that he is raising a constitutional claim with respect to judicial fact-finding in the sentencing process, the error is preserved." United States v. Castaneda-Barrientos, 448 F.3d 731, 732 (5th Cir.2006) (emphasis added) (citing United States v. Olis, 429 F.3d 540, 543-44 (5th Cir.2005)). The objection, however, should be couched in terms that facts used to enhance the sentence were not proven to a jury beyond a reasonable doubt. See Akpan, 407 F.3d at 376-77 (finding one defendant, who had objected on the ground the sentencing fact "had not been proven at trial", had preserved Booker error, but finding the other defendant, who did not "couch his arguments . . . in the same terms", did not preserve such error).

In objecting, Rodarte claimed: to look beyond Taylor-approved evidence would "not . . . fall under the categorical approach as espoused by the Fifth Circuit and the Supreme Court"; and to adhere to that approach would "create uniformity in the system, and avoid . . . mini-trials . . . at sentencing". Earlier, he had stated: "[T]here were no jury instructions to be available to make [the committed-for-profit] determination [for the prior offenses]".

Ramirez' objection highlighted textual similarities between Guidelines § 2L1.2 and the statute at issue in Taylor; he then maintained: "[T]he court should not authorize mini-trials on conduct that is very remote . . . absent some clear unambiguous indication from the sentencing commission".

Contrary to defendants' contentions, citing to Taylor does not place a sentencing co...