United States v. Urbina-Rodriguez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 27, 2006

Charles R. Fulbruge III
Clerk
No. 05-40495
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE URBINA-RODRIGUEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-785-ALL
--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Jose Guadalupe Urbina-Rodriguez (Urbina) appeals the

sentence imposed following his guilty-plea conviction for illegal

reentry after deportation. Urbina argues that the district court

committed reversible plain error when it enhanced his sentence

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior

conviction, in Kentucky state court, for sexual abuse.

The Government argues that Urbina waived his right to raise

this argument on appeal by “knowingly and intentionally” failing

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 No. 05-40495
-2-

to raise the issue during sentencing. Alternatively, the

Government seeks to enforce the waiver of appeal executed by

Urbina in the plea agreement. We reject both contentions. See

United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005);

FED. R. CRIM. P. 11(b)(1)(N).

Under the 2004 version of § 2L1.2(b)(1)(A)(ii), a person

convicted of illegal reentry faces a 16-level increase in their

base offense level if, prior to deportation, they were convicted

of a felony that is “a crime of violence.” The term “crime of

violence means any of the following: forcible sex offenses . . .

or any offense under federal, state, or local law that has an

element of use, attempted use, or threatened use of physical

force against the person of another.”

§ 2L1.2, comment. (n.1(b)(iii)).

When, as here, the statute to which Urbina pleaded guilty

contained multiple, disjunctive subsections, a district court may

“look beyond the statute to certain ‘conclusive records made or

used in adjudicating guilt’ in order to determine which

particular statutory alternative applies to the defendant’s

conviction.” United States v. Gonzalez-Chavez, F.3d (5th

Cir. Nov. 30, 2005), No. 04-40173, 2005 WL 3196524 at *2

(internal quotation and citation omitted). “These records are

generally limited to the ‘charging document, written plea

agreement, transcript of the plea colloquy, and any explicit

factual finding by the trial judge to which the defendant
 No. 05-40495
-3-

assented.’” Id. (citing Shepard v. United States, 125 S. Ct.

1254, 1257 (2005)). “Reliance on the PSR will not suffice.” Id.

Although the defendant in Gonzalez-Chavez was raising his

challenge to the application of § 2L1.2(b)(1)(A)(ii) for the

first time on appeal, we refused to consider facts contained in

the PSR which related to the alleged conduct of the prior

offense. Id. Because the record contained no other documents

upon which it could rely to determine whether the prior offense

fit under the definition of a crime of violence, we remanded the

case for resentencing. Id. at *2-3.

The instant case is controlled by Gonzalez-Chavez, 2005 WL

3196524 at *2. Accordingly, we VACATE the sentence and REMAND

for resentencing.

Urbina also argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Urbina’s argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). Although Urbina contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi, we have repeatedly rejected such arguments on the basis

that Almendarez-Torres remains binding. See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.

Ct. 298 (2005). Urbina properly concedes that his argument is
 No. 05-40495
-4-

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

VACATE AND REMAND FOR RESENTENCING.