United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 7, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40167
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JUAN ARVISO-MATA,
also known as Juan Jose Arviso-Mata
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Juan Arviso-Mata appeals the 70-month sentence imposed
following his guilty-plea conviction of illegally re-entering the
United States after deportation in violation of 8 U.S.C. § 1326.
Arviso presents three issues: (1) whether the district court erred
in calculating Arviso’s criminal history score; (2) whether the
district court’s application of the mandatory Sentencing Guidelines
was harmless error; and (3) whether 8 U.S.C. § 1325(b)(1) and
(b)(2) are unconstitutional in light of Apprendi v. New Jersey.1
We affirm Arviso’s conviction, vacate Arviso’s sentence, and remand
for resentencing.
I
Without the benefit of a plea agreement, Arviso pleaded guilty
to illegally re-entering the United States after being previously
1
530 U.S. 466 (2000).
deported. The presentence report (PSR) established Arviso’s base
offense level at 8. He received a 16-level enhancement because he
was deported previously following a conviction for transporting
undocumented aliens within the United States. He received a three-
level reduction for acceptance of responsibility. His total
offense level was 21, with a resulting guidelines range of 70 to 87
months imprisonment.
Arviso filed written objections to the PSR. He objected to
the 16-level enhancement on the basis of Blakely v. Washington. He
also objected to the constitutionality of 8 U.S.C. § 1326(b), but
he conceded that this argument was foreclosed. At sentencing, the
court asked Arviso’s counsel for any objections to the PSR.
Counsel stated: “Your honor, we filed a Blakely objection to the 16
level enhancement for his August, 1994 conviction for purposes of
further appellate review. . . . Outside of that, Your Honor, we
have no objections to the PSR. The [August 1994] conviction was 10
years ago. We’d ask the Court to consider a sentence at the low
end.” After overruling the single objection, the district court
sentenced Arviso to 70 months imprisonment and three years of
supervised release. Arviso timely appealed. We have jurisdiction
under 28 U.S.C. § 1291.
II
Arviso raises three issues on appeal. First, he contends that
the district court erred in calculating Arviso’s criminal history
score. Second, he contends the district court’s application of the
mandatory Sentencing Guidelines was not harmless error. Third, he
contends that 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional
in light of Apprendi.
A
Admitting that the issue was not raised below, Arviso contends
that the district court plainly erred in assessing two criminal
history points for his 1993 misdemeanor conviction of illegal entry
2
into the United States because the sentence was imposed more than
ten years prior to the commission of the instant offense.2 The
government contends that this asserted error, in addition to being
forfeited, was also waived. We disagree.
“Waiver and forfeiture are two different means by which a
defendant may react to an error by the government or the district
court in the proceedings in a case.”3 The doctrines are similar,
although distinct. Forfeiture is the failure to make the timely
assertion of a right; waiver is the intentional relinquishment of
a known right.4 Forfeited errors are reviewed under the plain
error standard; waived errors are entirely unreviewable.5
Waiver is the “‘intentional relinquishment or abandonment of
a known right.’”6 There is no evidence, here, that counsel knew of
the sentencing guidelines issue and that he consciously chose to
forego it. The government’s only evidence of waiver is counsel’s
statement that, other than the Blakely objection, he had no problem
with the PSR. This statement, alone, is insufficient to establish
that Arviso’s counsel abandoned a known right. The unpublished
opinions cited by the government are inapposite. In both United
States v. Martinez and United States v. Molina, the defendant
objected, in writing, to the presentence report, but subsequently
affirmatively abandoned the objection before the court at
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sentencing. We cannot say the same occurred here.
2
See U.S. SENTENCING GUIDELINES § 4A1.1(b).
3
United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002).
4
United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1993).
5
United States v. Musquiz, 45 F.3d 927, 931-32 (5th Cir. 1995).
6
United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)).
7
United States v. Martinez, 79 Fed. Appx. 12, 13 (5th Cir. 2003) (noting
that the defendant filed written objections to the presentence report, but at the
sentencing hearing, he “informed the district court that he was not pursuing the
3
Turning to the merits, we review the district court’s
application of the sentencing guidelines de novo.8 Because there
was no objection below, Arviso must establish that the district
court plainly erred in application of the guidelines.9
The district court assessed Arviso two criminal history points
for his 1993 conviction of illegal reentry. According to the
indictment for the instant offense, Arviso was arrested for the
instant offense on August 3, 2003. According to the PSR, Arviso
pled guilty to the prior offense on March 3, 1993.10 Under §
4A1.2(e), computation of criminal history points is determined by
the length of the sentence and the date of the imposition or
release of the sentence. Here, Arviso was sentenced to five years
of probation without supervision. There was no term of
imprisonment.
Section 4A1.e(2) governs whether prior convictions count for
criminal history purposes. Under § 4A1.2(e)(1), “[a]ny prior
sentence of imprisonment exceeding one year and one month that was
imposed within fifteen years of the defendant’s commencement of the
instant offense is counted.” This provision is not applicable, as
Arviso’s prior conviction did not result in imprisonment exceeding
one year and one month. Under § 4A1.2(e)(2), “[a]ny other prior
written objections to the presentence report, that the presentence report was
correctly written in all respect, and that the district court could rely upon the
presentence report in determining his sentence”); United States v. Molina, 82
Fed. Appx. 977, 979 (5th Cir. 2003) (noting that the defendant “withdrew her
objections to the PSR at the sentencing hearing” and thus they were waived).
8
United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005); United
States v. Jefferson, 258 F.3d 405, 412 (5th Cir. 2001).
9
See, e.g., United States v. Garcia-Cantu, 302 F.3d 308, 310 (5th Cir.
2002).
10
We have repeatedly held that the PSR “is considered reliable and may be
considered as evidence by the district court when making sentencing
determinations.” United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004);
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999); United States v.
Reyna, 130 F.3d 104, 112 (5th Cir. 1997).
4
sentence that was imposed within ten years of the defendant’s
commencement of the instant offense is counted.” This provision is
not applicable, as the instant offense occurred on August 3, 2003
and the sentence for the prior offense was imposed on March 3,
1993, which is outside the ten-year period.11 Thus, we are left
with § 4A1.2(e)(3), which provides that “[a]ny other sentence not
within the time periods specified above is not counted.” As
Arviso’s March 1993 conviction does not fall within the time
periods specified in § 4A1.2(e)(1) or (2), it should not have
counted.
Our conclusion that the district court erred is not changed by
the subsequent revocation of Arviso’s probation on September 13,
1994. Following revocation, Arviso was sentenced to three months
of imprisonment. Section 4A1.2(k)(1) provides that “[in the case
of a prior revocation of probation, . . . add the original term of
imprisonment to any term of imprisonment imposed upon revocation.
The resulting total is used to compute the criminal history points
for [§ 4A1.1].” Here, the original term of imprisonment was zero
months; the additional term was three months.
Section 4A1.2(k)(2)(B) explains how the new term of
imprisonment affects the counting of criminal history points under
§ 4A1.2(e). If the total term of imprisonment exceeds one year and
one month, we are instructed to use “the date of last release from
incarceration on such sentence.” This provision is inapplicable,
as Arviso’s new term of imprisonment was only three months.
Ignoring a provision regarding minors, in all other cases “the date
of the original sentence” is used. Here, that is March 3, 1993,
which, as discussed previously, is outside the window for
consideration under § 4A1.2(e) and § 4A1.1(b). The district court
11
See United States v. Arnold, 213 F.3d 894, 895-96 (5th Cir. 2000) (in
calculating criminal history score under § 4A1.2(e), sentence imposed when
defendant found guilty and given suspended sentence).
5
plainly erred in considering Arviso’s March 1993 conviction for
purposes of enhancing his criminal history score.
B
Second, Arviso contends the district court erred by applying
the mandatory sentencing guidelines, in violation of United States
v. Booker.12 Technically, the erroneous application of the
guidelines as mandatory is a “Fanfan error.”13 The government
concedes that Arviso preserved his Fanfan error for appeal and that
the issue is reviewed for harmless error.14 The government contends
that the error is harmless because the court imposed a “reasonable”
sentence at the law end of the guidelines range. However, the
government cannot carry is arduous burden of showing that the
district court would not have sentenced Arviso differently under an
advisory guidelines system.15
C
Finally, Arviso contends that 8 U.S.C. § 1326 is
unconstitutional. As he concedes, this argument is foreclosed by
Almendarez-Torres v. United States, which this Court must follow
“unless and until the Supreme Court itself determines to overrule
it.”
III
Accordingly, the judgment of conviction is AFFIRMED. We
VACATE Arviso’s sentence and REMAND to the district court for
resentencing.
12
125 S.Ct. 738 (2005).
13
United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.), cert.
denied, 126 S.Ct. 464 (2005); see also Booker, 125 S.Ct. at 768-79.
14
See United States v. Walters, 418 F.3d 461, 464 (5th Cir. 2005).
15
See United States v. Pineiro, 410 F.3d 282, 284-85 (5th Cir. 2005);
United States v. Garza, 429 F.3d 165, 170-71 (5th Cir. 2005) (Booker error).
6
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED.
7