United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2007
_______________________
Charles R. Fulbruge III
No. 05-51291 Clerk
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER ERIC JENKINS,
Defendant-Appellant.
On Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
EDITH H. JONES, Chief Judge:
Christopher Eric Jenkins pled guilty to possession with
intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(vii) and was sentenced to 120 months
imprisonment. He challenges his sentence, arguing that the court
failed to follow the procedures set forth in 21 U.S.C. § 851,
violated Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254
(2005), by relying on the PSR’s characterization of his prior
offenses, and clearly erred by denying a sentence reduction for his
minor role in the offense. Finding no reversible error, we AFFIRM.
I. BACKGROUND
After being apprehended while transporting 165 kilograms
of marijuana, Jenkins pled guilty in June 2005 to possession with
intent to distribute without the benefit of a plea agreement. The
government’s information, filed pursuant to 21 U.S.C. § 851, sought
a sentencing enhancement because Jenkins had previously been
convicted of three felony drug offenses. The PSR calculated
Jenkins’s total offense level at twenty-three after three levels
were subtracted for acceptance of responsibility. Jenkins’s
criminal history category of VI provided a guideline range of 92 to
115 months imprisonment; however, the mandatory minimum term based
on the enhancement for a prior felony offense was ten years. See
21 U.S.C. § 841(b)(1)(B). Addressing the court at his sentencing
hearing, Jenkins objected to the enhancement because “[i]t was $10
worth of drugs on two occasions — two separate felonies, and those
were the two that were used to enhance me, 10 to life.” (emphasis
added). The district court rejected Jenkins’s request for a
downward adjustment based on his minor role in the offense and
sentenced him in September 2005 to 120 months imprisonment and
eight years of supervised release. Jenkins now appeals his
sentence.
II. DISCUSSION
A. 21 U.S.C. § 851
Jenkins argues that the district court failed to follow
the procedures set forth in 21 U.S.C. § 851. If the government
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files an information to establish a defendant’s prior convictions,
section 851(b) requires the sentencing court to
inquire of the person with respect to whom the
information was filed whether he affirms or denies that
he has been previously convicted as alleged in the
information, and shall inform him that any challenge to
a prior conviction which is not made before sentence is
imposed may not thereafter be raised to attack the
sentence.
Id.
Because Jenkins concedes that he did not object to this
error before the district court, we review for plain error only.
See United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005)
(per curiam). Plain error exists when: “(1) there was error; (2)
the error was clear and obvious; and (3) the error affected the
defendant’s substantial rights.” Id. If these three conditions
are met, the court may exercise its discretion to recognize the
error “only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
358-59.
Jenkins is correct that the court failed to strictly
follow § 851, but the error did not affect his substantial rights.
Section 851(e)’s statute of limitations prevents a defendant from
challenging “the validity of any prior conviction . . . which
occurred more than five years before the date of the information
alleging such prior conviction.” The government filed its
information on June 7, 2005, and Jenkins’s prior felony convictions
were on February 24, 1994, November 6, 1998, and May 4, 2001.
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Because the statute of limitations would have prevented Jenkins
from challenging the 1994 and 1998 felony convictions, any error
committed by the district court was harmless. See United States v.
Fragoso, 978 F.2d 896, 902-03 (5th Cir. 1992); United States v.
Nanez, 694 F.2d 405, 412-13 (5th Cir. 1982). Further, Jenkins
admitted at sentencing that his prior convictions were felonies and
never revealed what challenges he was prepared to make to his prior
convictions. See § 851(c)(1); United States v. Thomas, 348 F.3d
78, 88 (5th Cir. 2003); United States v. Majors, 328 F.3d 791, 797
(5th Cir. 2003) (per curiam); Fragoso, 978 F.2d at 903.
B. Shepard Violation
Jenkins next contends that the district court violated
Shepard v. United States by relying on the PSR’s characterization
of his prior offenses for enhancement purposes. Because Jenkins
did not specifically object to the district court’s consideration
of the PSR, we also review this issue for plain error. See
Villegas, 404 F.3d at 358.
The Supreme Court held in Shepard that a sentencing court
is “generally limited to examining the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” 544 U.S. at 16, 125 S. Ct. at 1257.
Interpreting Shepard, this court holds that a district court errs
when it solely relies upon the PSR’s characterization of a
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defendant’s prior offenses for enhancement purposes. See United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005); see also United States v. Ochoa-Cruz,
442 F.3d 865, 867 (5th Cir. 2006) (per curiam). Although the PSR
characterized Jenkins’s prior convictions as felonies, the record
is silent regarding whether the court examined any supporting
documents.
Nevertheless, the district court had the benefit of
Jenkins’s own characterization of his prior offenses. Jenkins
admitted at sentencing that his prior convictions were for “two
separate felonies.” That admission was sufficient for the district
court to conclude that Jenkins’s prior convictions were felonies
without regard to the categorical approach for sentence
enhancements. See id. (citing Taylor v. United States, 495 U.S.
575, 110 S. Ct. 2143 (1990)). Thus, when a defendant admits before
a sentencing court that his prior convictions are felonies, the
court may rely upon his characterization of the offenses without
violating Shepard or Taylor. See Shepard, 544 U.S. 13, 16, 125 S.
Ct. 1254, 1257 (2005) (courts may examine transcript of plea
colloquy); see also United States v. Martinez-Vega, 471 F.3d 559,
563 & n.3 (5th Cir. 2006) (reliance on PSR is error but reliance on
defendant’s admission of facts within the PSR is not); United
States v. White, 465 F.3d 250, 254 (5th Cir. 2006) (per curiam),
cert. denied, 127 S. Ct. 1167 (2007) (“district court can use all
facts admitted by the defendant in ascertaining the basis of a
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prior conviction for enhancement purposes” (internal quotation
marks omitted)); United States v. Mendoza-Sanchez, 456 F.3d 479,
483 (5th Cir. 2006) (per curiam) (“district court can use all facts
admitted by the defendant in determining whether the prior
conviction qualifies as an enumerated offense under § 2L1.2”). The
district court did not err by apparently relying on Jenkins’s
admission at sentencing. See Martinez-Vega, 471 F.3d at 563 & n.3
(5th Cir. 2006); Ochoa-Cruz, 442 F.3d at 867.
In addition, Jenkins has not asserted or demonstrated on
appeal that his prior convictions are not felonies. His failure to
show that the enhancement was wrong affords another reason why
Jenkins cannot meet his burden under plain-error review. See
Ochoa-Cruz, 442 F.3d at 867; see also Villegas, 404 F.3d at 364.
C. Minor Role in the Offense
Finally, Jenkins argues that the district court erred by
not awarding him a downward adjustment based on his minor role in
the offense. See U.S.S.G. § 3B1.2. He contends that he was a
“minor participant” in the criminal activity because he was only a
courier of the drugs. However, “a defendant may be a courier
without being either a minimal participant or a minor participant.”
See United States v. Gallegos, 868 F.2d 711, 713 (5th Cir. 1989)
(citing United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir.
6
1989)). The district court did not clearly err in failing to award
a downward adjustment. See United States v. Virgen-Moreno,
265 F.3d 276, 296 (5th Cir. 2001).
III. CONCLUSION
For the reasons discussed above, we affirm Jenkins’s
sentence.
AFFIRMED.
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