Opinion
No. 09-50652 Summary Calendar.
May 17, 2010.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
John David Gates, Law Offices of John D. Gates, El Paso, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 3:08-CR-1512-1.
Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
Jesus Mauricio Carreon appeals the sentence imposed following his convictions for illegal reentry, fraud in a citizenship proceeding, and making a false statement under oath. He contends the district court: plainly erred by relying solely on the presentence investigation report (PSR) to enhance his sentence by 16 levels for a prior federal conviction for a crime of violence, under Guideline § 2L1.2(b)(1)(A)(ii); and erred by treating that prior conviction as a sentencing factor instead of an element of the offense.
Carreon did not object in district court to the 16-level enhancement. Therefore, that issue is reviewed only for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied ___ U.S. ___, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). Reversible plain error exists where a clear or obvious error affects the defendant's substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009); see also Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Even then, we have discretion whether to correct such an error and generally will do so only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d at 332.
"[A] district court [is] not permitted to rely on a PSR's characterization of a defendant's prior offense for enhancement purposes". United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005). Here, however, the Government, through an unopposed motion, has supplemented the record on appeal with evidence corroborating the information in the PSR that the district court erroneously relied on — specifically, the indictment and the judgment of conviction for Carreon's prior offense. See United States v. Fernandez-Cusco, 447 F.3d 382, 386 (5th Cir. 2006) (allowing unopposed supplementation of record on appeal with, inter alia, charging document and judgment).
That judgment of conviction shows Carreon was convicted of taking a motor vehicle by force while possessing a firearm, in violation of 18 U.S.C. § 2119. Because these documents support the district court's applying the 16-level enhancement for the prior conviction, Carreon has not shown he would have received a lower sentence but for the district court's relying on the PSR. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006). Therefore, Carreon has not shown that his substantial rights were affected and, accordingly, has not established reversible plain error. See Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2cl 266 (2009).
Carreon also challenges the constitutionality of 8 U.S.C. § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. See generally Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Carreon acknowledges, this contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007).