United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2005
_____________________
Charles R. Fulbruge III
03-41754 Clerk
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RENE VALENZUELA-QUEVEDO
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
1
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-
2
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 (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 (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
3
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
1
While the Supreme Court’s recent opinion in Booker, 125
S.Ct. 738, alters the mandatory nature of the guidelines, it does
not affect our standard of review for legal questions. See
United States v. Villegas, --- F.3d ----, 2005 WL 627963 (Mar. 17
2005).
4
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
5
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
6
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. Weinart,
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. U.S. v. Mares, --- F.3d ----, 2005 WL
503715 at *1 (5th Cir. Mar. 4, 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
7
rights." United States v. Cotton, 535 U.S. 625, 631 (2002)
(citation and internal quotation marks omitted). "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." Id. (citation and internal quotations
marks omitted).
We first address whether there was error. In Mares, we
found error in “the imposition of a sentence, which was enhanced
by using judge found facts, not admitted by the defendant or
found by the jury, in a mandatory Guideline system.” 2005 WL
503715 at *9. The case at bar does not present such a scenario.
Valenzuela-Quevedo’s sentence was based entirely, with the
exception of a downward adjustment for acceptance of
responsibility requested by Valenzuela-Quevedo himself, on facts
admitted by him and on the existence of prior convictions.
Booker, 125 S.Ct. at 756 (“[W]e reaffirm our holding in Apprendi:
Any fact (other than a prior conviction) which is 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.”) Consequently, Valenzuela-Quevedo’s Sixth Amendment
rights were not violated.
Valenzuela-Quevedo argues instead that a sentence imposed
8
under the mandatory Guidelines system is erroroneous under the
new post-Booker sentencing regime. He bases this on the Supreme
Court’s rejection of a remedy that would leave the Guidelines
mandatory in any case where they would result in a Sixth
Amendment violation but advisory in all other cases. See Booker,
125 S.Ct. at 768 (“Such a two-system proposal seems unlikely to
further Congress' basic objective of promoting uniformity in
sentencing.”) In other words, according to Valenzuela-Quevedo,
his sentence under the Guidelines is erroneous if the district
court imposed that sentence under the mistaken belief that it was
required to impose the Guidelines sentence. It is clear after
Booker that application of the Guidelines in their mandatory form
constitutes error that is plain. See id. at 769 (finding no Sixth
Amendment violation in respondent Fanfan’s sentence but
nonetheless vacating the sentence and remanding because “both the
Sixth Amendment holding and our remedial interpretation of the
Sentencing Act” are to be applied to all cases on direct
review”); Johnson v. United States, 520 U.S. 461, 468
(1997)(holding it is enough that error be plain at the time of
appellate review). However, Valenzuela-Quevedo has not shown that
his substantial rights have been affected.
The third prong requires the defendant to establish that the
error “affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). The error must
9
“demonstrate a probability ‘sufficient to undermine confidence in
the outcome.’” Mares, 2005 WL 503715 at *8 (quoting United States
v. Dominguez Benitez, --- U.S. ----, ----, 124 S.Ct. 2333, 2340,
159 L.Ed.2d 157 (2004)).
Here, Valenzuela-Quevedo has not made such a showing. While
he has highlighted instances in which the district court prompted
Valenzuela-Quevedo to help the government apprehend others
involved in the crime and thereby lower his sentence, a review of
the record does not support the contention that the district
judge would have imposed a different sentence. In the sentencing
hearing transcripts, we find evidence to the contrary. The
district judge explicitly stated that Valenzuela-Quevedo had not
learned from his prior mistakes; indicated he felt that one of
Valenzuela-Quevedo’s prior sentences was an inadequate penalty in
light of the fact that somebody had been killed in connection
with that prior offense; discussed with disapproval Valenzuela-
Quevedo’s criminal record, which included ten prior convictions;
and evinced approval of the applicability of the career offender
designation in this case. Because Valenzuela-Quevedo has not met
his burden of establishing prejudice, he has not fulfilled the
requirements to show plain error.
III. Conclusion
Accordingly, we AFFIRM Valenzuela-Quevedo’s conviction and
sentence.
10