United States v. Valenzuela-Quevedo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2005
_____________________
Charles R. Fulbruge III
03-41754 Clerk
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee
v.

RENE VALENZUELA-QUEVEDO

Defendant - Appellant
___________________

Appeal from the United States District Court
for the Southern District of Texas
___________________

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Rene Valenzuela-Quevedo appeals his conviction and

sentence for possession with intent to distribute a controlled

substance and conspiracy. For the reasons discussed below, we

affirm the district court’s judgment.

I. Background

In September of 2002, Valenzuela-Quevedo was indicted for

one count of possession with intent to distribute more than 1000

kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A) and conspiracy to violate those statutes. Valenzuela-

Quevedo pled guilty. During sentencing, the district court

determined that Valenzuela-Quevedo was a “career offender” for

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purposes of the United States Sentencing Guidelines because

Valenzuela-Quevedo had a prior drug-related conviction and a

prior violent felony conviction. See U.S.S.G. § 4B1.1(a).

During sentencing, Valenzuela-Quevedo objected to his

designation as a career offender. He argued that his prior Utah

conviction, one of the convictions on which the district court

relied in designating him a career offender, was not a crime of

violence for purposes of § 4B1.1 and therefore not relevant to a

determination of his career offender status.

Valenzuela-Quevedo’s prior Utah conviction was for one count

of discharging a firearm from a vehicle. Following the language

of the applicable statute, see Utah Code Ann. § 76-10-508, the

information specifically charged in Count 1 that he

did discharge a dangerous weapon or firearm from an
automobile or other vehicle, from, upon, or across a
highway, in the direction of any person or persons,
knowing or having reason to believe that any person may
be endangered; and/or with intent to intimidate or harass
another, did discharge a dangerous weapon or firearm from
an automobile or other vehicle, from, upon, or across a
highway, in the direction of any vehicle.

Valenzuela-Quevedo had pled guilty to the charges.

Finding the prior Utah conviction to be a crime of violence,

the district court designated Valenzuela-Quevedo a career

offender. Thus, under U.S.S.G. § 4B1.1, the appropriate base

offense level was 37, and the appropriate criminal history

category was VI, which resulted in a penalty range of 262 to 327

months imprisonment. The district court denied Valenzuela-

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Quevedo’s motion for a downward departure based on an over-

represented criminal history but applied a downward departure of

three points for acceptance of responsibility. See U.S.S.G. §

3E1.1(a) & (b).

II. Discussion

Valenzuela-Quevedo challenges his conviction and sentence on

three grounds. First, he argues that 21 U.S.C. § 841(a) and

(b), under which he was convicted, are unconstitutional. Second,

he claims that the district court erred in sentencing him as a

career offender. Finally, he challenges his U.S. Sentencing

Guidelines-imposed sentence based on United States v. Booker, ---

U.S. ----, 125 S.Ct. 738 (2005). We treat each in turn.

A. Constitutionality of 21 U.S.C. § 841

For the first time on appeal, Valenzuela-Quevedo claims that

the provisions found at 21 U.S.C. § 841(a) and (b) are facially

unconstitutional. He asserts that the drug type and quantity

gradations of § 841(b) are to be viewed as sentencing factors

rather than as elements of a separate offense. He claims that,

as such, they are unconstitutional under Apprendi v. New Jersey,

530 U.S. 466 (2000). Valenzuela-Quevedo correctly acknowledges

that we rejected this very argument in United States v.

Slaughter, 238 F.3d 580 (5th Cir. 2000), where we treated the

gradations as elements of the crime. There, we upheld a sentence

where the drug type and quantity had been charged and found by a

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jury as elements of the crime. Here, the drug type and amount

were charged in the indictment and admitted by the defendant.

Thus, Valenzuela-Quevedo’s sentence was properly based on the

gradations provided for in § 841(b).

B. Applicability of Career Offender Status

Next, Valenzuela-Quevedo claims that the district court

erred in concluding that his prior Utah conviction was a crime of

violence for purposes of § 4B1.1 of the U.S. Sentencing

Guidelines. Consequently, he argues, he cannot be designated a

career offender.

This Court reviews de novo a district court’s interpretation

and application of the Sentencing Guidelines. United States v.

Charles, 301 F.3d 309, 312-13 (5th Cir. 2002) (en banc).1

Section 4B1.1 of the United States Sentencing Guidelines

provides that a defendant is a career offender if

(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.

U.S.S.G. § 4B1.1(a).

The parties do not dispute that Valenzuela-Quevedo was over

1
While the Supreme Court’s recent opinion in Booker, 125
S.Ct. 738, alters the mandatory nature of the guidelines, it does
not affect our standard of review for legal questions. See
United States v. Villegas, --- F.3d ----, 2005 WL 627963 (Mar. 17
2005).

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18 when he committed the instant offense, that the instant

offense (possession with intent to distribute over 1,000

kilograms of marihuana) is a felony, nor that Valenzuela-Quevedo

has a prior controlled substance felony offense. Thus, we must

determine whether the prior Utah conviction is a crime of

violence. We conclude that it is.

A crime of violence is any offense punishable by

imprisonment for a term exceeding one year and “(1) has as an

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

force against the person of another, or (2) . . . involves

conduct that presents a serious potential risk of physical injury

to another.” U.S.S.G. § 4B1.2(a). Application Note 1 to § 4B1.2

advises that an offense may fulfill the requirements of §

4B1.2(a) if “the conduct set forth (i.e., expressly charged) in

the count of which the defendant was convicted . . ., by its

nature, presented a serious potential risk of physical injury to

another.” Thus, “a categorical approach is taken to determine

whether the charged count of conviction, by its nature, presented

a serious potential risk of physical injury.” United States v.

Insaulgarat, 378 F.3d 456, 467 (5th Cir. 2004). We look only to

the face of the indictment in deciding whether a crime presents a

serious potential risk of injury to a person. Charles, 301 F.3d

at 314. Injury need not be certain, but “it must be clear from

the indictment that the crime itself or the conduct specifically

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charged posed this serious potential risk.” Id.

The information sets forth two alternative ways in which

Valenzuela-Quevedo may have violated the Utah statute. Either he

(1) discharged a weapon from a vehicle in the direction of any

person, or he (2) “with intent to intimidate or harass another,

did discharge a dangerous weapon or firearm from an automobile or

other vehicle, from, upon, or across a highway, in the direction

of any vehicle.” Where the defendant’s actual conduct is not

clear from the face of the charging document, we proceed “under

the assumption that his conduct constituted the least culpable

act satisfying the count of conviction.” United States v.

Houston, 364 F.3d 243, 246 (5th Cir. 2004). Here, then, we

assume that Valenzuela-Quevedo violated the Utah statute by the

latter alternative mentioned in the information.

We agree with the district court that such behavior poses “a

serious potential risk of physical injury to another.” U.S.S.G. §

4B1.2(a)(2). Firing a weapon from, on, or across a highway at

another is a dangerous activity, especially when the motivation

for the act is a desire to intimidate or harass. Of course, such

activity risks the life of any person occupying the vehicle at

which the perpetrator fires. In addition to that risk, such an

action endangers the lives of innocent bystanders and drivers,

whose presence is likely given the public accessibility of

highways. Moreover, even in a scenario where the perpetrator

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believes that there are no bystanders present and that the

vehicle at which he is firing is empty, it is ultimately

impossible to know for certain whether a vehicle is unoccupied,

especially when shooting from another vehicle as charged in

Valenzuela-Quevedo’s information. Cf. United States v. Weinart,

1 F.3d 889, 891 (9th Cir. 1993) (finding that firing a weapon at

an inhabited dwelling regardless of whether the residence was

occupied was a violent crime because it presented a risk to

neighbors, bystanders, and law enforcement authorities that might

respond); United States v. Cole, 298 F.3d 659, 662 (7th Cir.

2002) (stating in dictum that “discharging a firearm is an

inherently risky act”).

C. Applicability of Booker

Finally, in supplemental briefing, Valenzuela-Quevedo

challenges the district court’s use of the United States

Sentencing Guidelines, which were found unconstitutional as

mandatory guidelines in the Supreme Court’s opinion in United

States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005), issued during the pendency of this appeal. Because he did

not raise this argument in the district court, we review this

argument for plain error. U.S. v. Mares, --- F.3d ----, 2005 WL

503715 at *1 (5th Cir. Mar. 4, 2005). Under that standard of

review, we may reverse only if the appellant demonstrates "(1)

error, (2)that is plain, and (3) that affects substantial

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rights." United States v. Cotton, 535 U.S. 625, 631 (2002)

(citation and internal quotation marks omitted). "If all three

conditions are met an appellate court may then exercise its

discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation

of judicial proceedings." Id. (citation and internal quotations

marks omitted).

We first address whether there was error. In Mares, we

found error in “the imposition of a sentence, which was enhanced

by using judge found facts, not admitted by the defendant or

found by the jury, in a mandatory Guideline system.” 2005 WL

503715 at *9. The case at bar does not present such a scenario.

Valenzuela-Quevedo’s sentence was based entirely, with the

exception of a downward adjustment for acceptance of

responsibility requested by Valenzuela-Quevedo himself, on facts

admitted by him and on the existence of prior convictions.

Booker, 125 S.Ct. at 756 (“[W]e reaffirm our holding in Apprendi:

Any fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

doubt.”) Consequently, Valenzuela-Quevedo’s Sixth Amendment

rights were not violated.

Valenzuela-Quevedo argues instead that a sentence imposed

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under the mandatory Guidelines system is erroroneous under the

new post-Booker sentencing regime. He bases this on the Supreme

Court’s rejection of a remedy that would leave the Guidelines

mandatory in any case where they would result in a Sixth

Amendment violation but advisory in all other cases. See Booker,

125 S.Ct. at 768 (“Such a two-system proposal seems unlikely to

further Congress' basic objective of promoting uniformity in

sentencing.”) In other words, according to Valenzuela-Quevedo,

his sentence under the Guidelines is erroneous if the district

court imposed that sentence under the mistaken belief that it was

required to impose the Guidelines sentence. It is clear after

Booker that application of the Guidelines in their mandatory form

constitutes error that is plain. See id. at 769 (finding no Sixth

Amendment violation in respondent Fanfan’s sentence but

nonetheless vacating the sentence and remanding because “both the

Sixth Amendment holding and our remedial interpretation of the

Sentencing Act” are to be applied to all cases on direct

review”); Johnson v. United States, 520 U.S. 461, 468

(1997)(holding it is enough that error be plain at the time of

appellate review). However, Valenzuela-Quevedo has not shown that

his substantial rights have been affected.

The third prong requires the defendant to establish that the

error “affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993). The error must

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“demonstrate a probability ‘sufficient to undermine confidence in

the outcome.’” Mares, 2005 WL 503715 at *8 (quoting United States

v. Dominguez Benitez, --- U.S. ----, ----, 124 S.Ct. 2333, 2340,

159 L.Ed.2d 157 (2004)).

Here, Valenzuela-Quevedo has not made such a showing. While

he has highlighted instances in which the district court prompted

Valenzuela-Quevedo to help the government apprehend others

involved in the crime and thereby lower his sentence, a review of

the record does not support the contention that the district

judge would have imposed a different sentence. In the sentencing

hearing transcripts, we find evidence to the contrary. The

district judge explicitly stated that Valenzuela-Quevedo had not

learned from his prior mistakes; indicated he felt that one of

Valenzuela-Quevedo’s prior sentences was an inadequate penalty in

light of the fact that somebody had been killed in connection

with that prior offense; discussed with disapproval Valenzuela-

Quevedo’s criminal record, which included ten prior convictions;

and evinced approval of the applicability of the career offender

designation in this case. Because Valenzuela-Quevedo has not met

his burden of establishing prejudice, he has not fulfilled the

requirements to show plain error.

III. Conclusion

Accordingly, we AFFIRM Valenzuela-Quevedo’s conviction and

sentence.

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