United States v. Rubio-Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 28, 2005

Charles R. Fulbruge III
Clerk
No. 04-41503
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARIO RUBIO-GARCIA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1108-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

Dario Rubio-Garcia appeals from the sentence imposed

following his guilty-plea conviction for illegal entry, in

violation of 8 U.S.C. § 1325(a)(1).

Rubio-Garcia argues that the district court erred when it

classified a prior conviction for driving under the influence of

alcohol (DUI) as a felony offense that warranted a four-level

offense level enhancement under U.S.S.G. § 2L1.2(b)(1)(D)(2003).

He also argues that the district court reversibly erred when it

*
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this opinion should not be published and is not precedent except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.
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sentenced him pursuant to the mandatory Guidelines scheme that

was stricken in United States v. Booker, 125 S. Ct. 738 (2005).

While the record indicates that a document was provided to

the district court to support the probation department’s

characterization of Rubio-Garcia’s prior DUI offense as a felony

that warranted the U.S.S.G. § 2L1.2(b(1)(D) enhancement, the

document is not in the record. Thus, this court cannot review

the document to resolve whether the district court erred when it

relied upon the document for the enhancement. See Shepard v.

United States, 125 S. Ct. 1254, 1257 (2005); United States v.

Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126

S. Ct. 298 (2005) (citation omitted). Because the document is

missing from this court’s record, the only support for the

enhancement is the assertions that are set forth in the

presentence report. For enhancement purposes, a district court

may not rely solely on the PSR’s characterization of the offense.

See Garza-Lopez, 410 F.3d at 274. Additionally, the probation

department described the document that was allegedly provided to

the district court as a computer printout. A “computer printout”

is not a charging document, a written plea agreement, a

transcript of plea colloquy, or a explicit factual finding by the

trial judge to which the defendant assented. Therefore, based

upon the probation department’s description of the document and

the authority set forth in Shepard, 125 S. Ct. at 1257, and

Garza-Lopez, 410 F.3d at 274, the district court erred when it
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determined that Rubio-Garcia’s prior DUI conviction warranted the

U.S.S.G. § 2L1.2((b)(1)(D) enhancement.

Because this court is vacating Rubio-Garcia’s sentence due

to a misapplication of the Guidelines, it is not necessary to

address Rubio-Garcia’s Booker claim. See Garza-Lopez, 410 F.3d

at 275 n.2.

We therefore VACATE Rubio-Garcia’s sentence and REMAND for

resentencing consistent with this opinion and the Supreme Court’s

opinion in Booker.