United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 26, 2007
Charles R. Fulbruge III
Clerk
No. 05-51362
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORLANDO MORALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-1152-2)
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
On remand for resentencing under Booker, Orlando Morales was
sentenced to, inter alia, two concurrent 151-month terms of
imprisonment. He challenges that sentence on two bases:
imposition of a career-offender enhancement, due to two prior
state-court armed-robbery convictions; and denial of a “minor role”
downward adjustment. AFFIRMED.
*
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this opinion should not be published and is not precedent except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.
I.
Morales pleaded guilty in August 2004 to a two-count
indictment charging him with conspiracy to possess, and possession
with intent to distribute, cocaine, in violation of 21 U.S.C. §§
846 and 841(a)(1). Applying the 2003 Sentencing Guidelines, the 25
October 2004 presentence investigation report (PSR) determined
Morales’ offenses involved 146.69 grams of cocaine, resulting in a
base offense level of 18. See U.S.S.G. § 2D1.1(a)(3). Because
Morales had two prior state armed-robbery convictions, the PSR
recommended increasing his offense level to 32, pursuant to a
career-offender enhancement under Guidelines § 4B1.1(a) (defining
“career offender” as a defendant convicted of “a felony that is
either a crime of violence or a controlled substance offense”, when
that defendant “has at least two prior felony convictions of either
a crime of violence or a controlled substance offense”).
In recommending this enhancement, the PSR stated Morales had
been convicted of: two counts of armed robbery in Carlsbad, New
Mexico, on 27 August 1984 (docket number CR-84-187-F) (the Carlsbad
robberies); and two counts of armed robbery in Hobbs, New Mexico,
on 4 September 1984 (docket number CR-84-188-F) (the Hobbs
robberies). The sentencing record, however, did not contain a
citation to the New Mexico armed-robbery statute or any state-court
documents relating to these convictions. In any event, the PSR
stated Morales’ prior armed-robbery offenses: were committed on
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different dates, with different victims, in different cities; and
were prosecuted pursuant to different arrest dates, cause numbers,
judges, and sentencing dates. Thus, the career-offender
recommendation rested upon the implicit conclusion in the PSR that
Morales’ armed-robbery convictions constituted “two prior felony
convictions” of “crime[s] of violence” within the meaning of
Guidelines § 4B1.1(a).
After a recommended acceptance-of-responsibility reduction,
Morales’ recommended total offense level was 29. This offense
level, combined with the Category VI criminal-history score
applicable to career offenders, resulted in a guideline range of
151-188 months.
Morales objected, contending the career-offender enhancement
was improper in the light of Blakely v. Washington, 542 U.S. 296
(2004) (holding unconstitutional a defendant’s state sentence being
increased based on a fact not found by the jury beyond a reasonable
doubt). He also maintained, pursuant to Guidelines § 4A1.2: the
prior felony convictions occurred more than 15 years earlier
(1984), and, therefore, should not be counted for the career-
offender enhancement.
At sentencing on 22 November 2004, the district court rejected
Morales’ objections. Adopting the PSR’s recommendation, it
sentenced Morales to two 162-month imprisonment terms to be served
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concurrently. Morales filed a notice of appeal on 23 November
2004.
His 4 May 2005 brief to this court presented two claims: he
should be resentenced pursuant to United States v. Booker, 543 U.S.
220, 233-34, 244 (2005) (holding sentencing guidelines advisory
rather than mandatory; any fact, other than a prior conviction,
necessary to support a sentencing enhancement must be admitted by
the defendant or proved to a jury beyond a reasonable doubt), which
had been decided on 12 January 2005, after Morales’ sentencing;
and, pursuant to Blakely, his career-offender enhancement was
improper because he did not admit, and a jury did not find, his
prior armed-robbery offenses were either related or crimes of
violence.
Before our court ruled on these claims, the Government on 6
June 2005 filed an unopposed motion to vacate and remand for
resentencing in the light of Booker. Later that month, our court
granted the motion.
At resentencing, Morales: reasserted the career-offender
enhancement was improper because his two armed-robbery convictions
were “related” and thus, under § 4A1.2, constituted only one prior
conviction; and, for the first time, contended he should receive a
downward adjustment for a claimed minor role in the drug offenses.
As discussed infra, Morales did not assert, however, that his prior
armed-robbery convictions were not crimes of violence.
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At resentencing on 29 September 2005, the district court:
rejected Morales’ contentions; denied a downward-departure and
request for a variance from the Guidelines; and sentenced Morales
to two concurrent 151-month imprisonment terms (11 months less for
each sentence than the first sentence). Morales again appealed.
II.
Morales contends: his career-offender enhancement was
improper because his two prior armed-robbery convictions were
“related” and thus constituted only one prior conviction; in
imposing that enhancement, the district court erred in
characterizing those two prior offenses as “crimes of violence”;
and he should have received a minor-role adjustment. In reviewing
a post-Booker sentence, we still review the application of the
advisory Guidelines as a first step in deciding whether a sentence
is “reasonable”. E.g., United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005). Likewise, for that initial step, we still “apply
ordinary prudential doctrines, [to] determin[e], for example,
whether [an] issue was raised [in district court] and [,if not,]
whether it fails the ‘plain error’ test”. Id. (quoting Booker, 543
U.S. at 268).
A.
In challenging his career-offender enhancement, Morales claims
the district court erred in two ways: in treating his prior armed-
robbery offenses as “two prior felony convictions”, rather than as
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“related” convictions, and, therefore, for Guidelines § 4B1.1
purposes, as a single prior felony conviction; and in adopting the
PSR’s characterization of these offenses as “crimes of violence”.
1.
Regarding his prior convictions being treated as separate,
Morales does not contend they were formally consolidated. Rather,
he maintains his Hobbs and Carlsbad robberies were functionally
consolidated because they were charged in cases with consecutive
docket numbers, the judgments alluded to one another, and the
sentences were imposed only days apart and were ordered to run
concurrently.
Because Morales presented this claim at his initial
sentencing, in his initial appeal, and at resentencing, we review
the district court’s interpretation and application of the now
advisory Guidelines de novo; its factual findings for clear error.
Clear error exists when a factual finding is not plausible in the
light of the record. United States v. Adam, 296 F.3d 327, 334 (5th
Cir. 2002).
For enhancement purposes, the Guidelines require courts to
count “related” convictions as a single prior felony. See U.S.S.G.
§ 4B1.2(c) & cmt. n.3 (“prior convictions” under § 4B1.1 include
only those counted separately under §§ 4A1.1 and 4A1.2). Along
this line, Guidelines § 4A1.2(a)(2) states: “Prior sentences
imposed in unrelated cases are to be counted separately. Prior
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sentences in related cases are to be treated as one sentence.” For
the latter, “prior sentences are considered related if they
resulted from offenses that (A) occurred on the same occasion, (B)
were part of a single common scheme or plan, or (C) were
consolidated for trial or sentencing”. U.S.S.G. § 4A1.2 cmt. n.3.
Morales contends his Hobbs and Carlsbad robberies were part of
a common plan or scheme and, therefore, were functionally
consolidated for sentencing in New Mexico. Our court has not
adopted the functional-consolidation doctrine Morales urges.
Rather, we have held that neither proximity of sentencing dates nor
the imposition of identical concurrent sentences necessitates
finding consolidation for purposes of a relatedness determination
under § 4A1.2(a)(2). United States v. Metcalf, 898 F.2d 43, 46
(5th Cir. 1990) (sentencing on same day does not call for finding
consolidation); United States v. Flores, 875 F.2d 1110, 1114 (5th
Cir. 1989) (rejecting proposition that cases must be considered
consolidated “[s]imply because two convictions have concurrent
sentences”); compare United States v. Huskey, 137 F.3d 283, 288
(5th Cir. 1998) (holding factually distinct offenses “charged in
the same criminal information under the same docket number ... have
been ‘consolidated’ ... and are therefore related”).
For this issue, the district court applied the Guidelines
correctly and, under the post-Booker sentencing regime permitting
factual finding by the district court, discussed infra in part
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II.A.2, did not clearly err in finding Morales’ prior armed-robbery
convictions were not part of a common plan or scheme or otherwise
related. Belying Morales’ contentions, his Hobbs and Carlsbad
robberies were committed on different dates, with different
victims, in different cities, and were prosecuted pursuant to
different arrest dates, cause numbers, judges, and sentencing
dates.
2.
Morales’ other challenge to his career-offender enhancement
concerns his prior convictions’ being treated as “crimes of
violence” under Guidelines § 4B1.2(a). He maintains: because the
record contains neither a citation to the New Mexico armed-robbery
statute under which he was convicted, nor any related state-court
documents, the district court violated the “categorical approach”
required by Shepard v. United States, 544 U.S. 13 (2005), for
characterizing prior convictions for enhancement purposes.
Morales could have raised this issue at resentencing because
his general Blakely objection preserved it at his initial
sentencing, and he presented it in his initial appeal. (When an
issue is barred from being considered at resentencing is addressed
infra in part II.B.) As noted supra, at resentencing, however,
Morales did not raise this issue. Therefore, as Morales concedes
in his reply brief, our review is limited to plain error. E.g.,
United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005)
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(failure to raise an objection in district court concerning its
reliance on the PSR results in plain-error review). Plain error
exists when a “clear” or “obvious” error affected a defendant’s
substantial rights. Id. Even if these conditions are met, an
appellate court may “exercise its discretion to notice a forfeited
error ... only if ... the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings”. Johnson
v. United States, 520 U.S. 461, 467 (1997) (internal quotation
marks and citations omitted).
“Under the categorical approach for sentence enhancements, a
court determines the nature of a prior conviction by examining the
statute under which the conviction was attained.” United States v.
Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (citing Shepard, 544
U.S. at 15; and Taylor v. United States, 495 U.S. 575, 602 (1990)).
The categorical approach “calls upon courts to look at the
statute[] at issue rather than the specific acts of the defendant”.
Id. Accordingly, our court has specifically rejected reliance on
facts presented in a PSR to characterize 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). Instead,
courts are limited to examining an offense’s statutory definition
and elements, the charging paper, a written plea agreement, the
guilty-plea transcript, factual findings by the trial judge to
which the defendant assented, or jury instructions. See Shepard,
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544 U.S. at 16 (“Shephard evidentiary limitations”); Garza-Lopez,
410 F.3d at 273. In short, a district court may not enhance a
sentence based solely on a PSR’s “mere characterization” of prior
offenses as crimes of violence. Ochoa-Cruz, 442 F.3d at 867.
Nothing indicates the district court relied upon anything
other than the PSR’s characterization of the armed-robbery
convictions as crimes of violence. Therefore, for our limited
plain-error review, the district court committed “clear” or
“obvious” error in characterizing the convictions as “crimes of
violence”. See id.
As stated, under our limited plain-error review, Morales must
show this error affected his substantial rights. See id. He
claims they were affected because the error caused his sentence to
be increased. On the other hand, he does not contend his armed-
robbery convictions were not crimes of violence.
The Guidelines application notes include robbery as an offense
constituting a crime of violence. U.S.S.G. § 4B1.2 cmt. n.1.
Moreover, the PSR states Morales pleaded guilty to each count of
armed robbery and notes the complaints in both cases alleged
Morales and two accomplices robbed the Hobbs and Carlsbad banks “at
gunpoint”. E.g., United States v. Caldwell, 448 F.3d 287, 291 n.1
(5th Cir. 2006) (“Even after Booker, a PSR is presumed to be
sufficiently reliable such that a district court may properly rely
10
on it [for factual determinations required by the Guidelines]
during sentencing”).
Finally, although it is not cited in the record, the New
Mexico armed-robbery statute supports the conclusion that Morales’
prior armed-robbery offenses were “crimes of violence” because that
statute requires the use or threatened use of physical force
against another. N.M. STAT. ANN. § 30-16-2 (1978) (“Robbery
consists of the theft of anything of value from the person of
another ... by use or threatened use of force or violence.”
(emphasis added)); see also U.S.S.G. § 4B1.2(a)(1) (defining “crime
of violence” as, inter alia, any state or federal felony that “has
as an element the use, attempted use, or threatened use of physical
force against the person of another”).
Obviously, armed robbery falls within the definition of a
crime of violence. Under our limited plain-error review, Morales
fails to show the error affected his substantial rights.
B.
Morales next asserts the district court erred in refusing to
award a downward adjustment for a minor role in the drug offenses,
pursuant to Guidelines § 3B1.2(b). This issue is not reviewable
because Morales did not raise it at his initial sentencing or in
his initial appeal; instead, he raised it for the first time at
resentencing. E.g., United States v. Moran, 393 F.3d 1, 11 (1st
Cir. 2004) (“In general, available claims of error not raised in an
11
initial appeal may not be raised during subsequent appeals in the
same case.” (emphasis omitted)); Brooks v. United States, 757 F.2d
734, 739 (5th Cir. 1985) (same).
Pursuant to the Government’s unopposed motion to remand for
resentencing under Booker, filed after Morales filed his brief for
his initial appeal, the ordered remand allowed Morales, at
resentencing, to continue to urge the issues he had raised on
appeal, because our court had not ruled on them. At resentencing,
however, he could not raise other, new issues.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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