United States v. Jose Mendoza

783 F.3d 278, 2015 U.S. App. LEXIS 5787, 2015 WL 1591244
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 9, 2015
Docket14-40168
StatusPublished
Cited by1 cases

This text of 783 F.3d 278 (United States v. Jose Mendoza) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jose Mendoza, 783 F.3d 278, 2015 U.S. App. LEXIS 5787, 2015 WL 1591244 (5th Cir. 2015).

Opinion

EDITH B. CLEMENT, Circuit Judge.

Jose Mendoza was indicted on one count of unlawfully entering the United States after having previously been deported, in violation of 8 U.S.C. § 1326. He pleaded guilty to the count on November 4, 2013. After finding that Mendoza had previously been deported in 2008 following a federal conviction for conspiracy to launder monetary instruments, the sentencing judge applied an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(C). Mendoza was sentenced within the advisory guidelines range to a sentence of forty-one months. He challenges this eight-level enhancement on appeal.

The issue on appeal is whether the district court committed plain error when it found that Mendoza’s prior money laundering conviction was an aggravated felony. The parties do not dispute that Mendoza was convicted of conspiracy to commit money laundering. Mendoza contends, however, that the district court relied on the 'presentence report in order to prove that his prior conviction was an aggravated felony, in violation of Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Because Mendoza did not raise this issue in district court, we review for plain error. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.2008). Plain error review has three components. First, Mendoza must show that there was an error, and that it was clear or obvious. *280 Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Second, he must show that this error affected his substantial rights. Id. Third, he must show that this error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks and alteration omitted).

Mendoza received an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for previously being deported after committing an aggravated felony. Money laundering is an aggravated felony if “the amount of the funds exceeded $10,000.” 8 U.S.C. § 1101(a)(43)(D). 1 The federal money laundering statute under which Mendoza was convicted, however, does not contain a $10,000 threshold. See 18 U.S.C. § 1956. Since Mendoza’s conviction did not necessarily involve an amount greater than $10,000, the district court was required to look to evidence outside the text of the statute in order to determine if a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C) was warranted. The issue Mendoza appeals is what documents may be considered in this determination. Mendoza contends that the district court erred by examining documents beyond those permitted under the modified categorical approach set forth in Shepard, 544 U.S. 13, 125 S.Ct. 1254 and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). These cases concern instances when a district court must determine whether a generic crime in a statutory provision is covered by a prior conviction. In such an instance, the district court is limited to “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.” Shepard, 544 U.S. at 16, 125 S.Ct. 1254.

The issue before the district court in this case, however, was not whether the generic crime in 8 U.S.C. § 1101(a)(43)(D) (the sentencing statute) was satisfied by 18 U.S.C. § 1956(h) (the statute of conviction). The issue before the district court was whether Mendoza’s prior money laundering conviction involved loss in excess of $10,000. Thus, the district court’s analysis was governed by Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), not Shepard or Taylor.

In Nijhawan the Supreme Court held that when a statute “does not refer to generic crimes but refers to specific circumstances,” Taylor does not apply. 557 U.S. at 37, 129 S.Ct. 2294. A generic crime would include “the crime of fraud or theft in general.” Id. at 34, 129 S.Ct. 2294. In contrast, a specific circumstance refers to the “specific way in which an offender committed the crime on a specific occasion.” Id.

In Nijhawan, the question was whether the fraud offense was an aggravated felony for deportation purposes when the statute defining aggravated felony had a $10,000 threshold requirement but the charged statute for the prior conviction did not. Id. at 32, 129 S.Ct. 2294. The Court noted that the definitional statute, 8 U.S.C. § 1101(a)(43), contains a long list of offenses, several of which clearly do not refer to generic crimes. Id. at 37-38, 129 S.Ct. 2294; See also, e.g., 8 U.S.C. § 1101(a)(43)(M)(i) (stating that fraud is an aggravated felony if the loss exceeds. $10,000), (P)(ii) (stating that forging a passport is an aggravated felony if the *281 maximum term of imprisonment is at least 12 months, unless the alien was only helping a “spouse, child, or parent”). Since there is no generic crime equivalent to some of the Section 1101(a)(43)’s subdivisions, the Court held that those subdivisions must refer to “particular circumstances in which an offender committed the crime on a particular occasion.” Nijhawan, 557 U.S. at 38, 129 S.Ct. 2294.

Having found the circumstance-specific approach applicable, the Court held that it could “find nothing unfair about the Immigration Judge’s having here relied upon earlier sentencing-related material” in determining that a conviction qualified as an aggravated felony. Id. at 42, 129 S.Ct. 2294. Specifically, the Court held that it was permissible for the Immigration Judge to consider the defendant’s stipulation at sentencing and the court’s restitution order for the prior conviction to determine the amount of loss involved in the crime. Id. at 42-43, 129 S.Ct. 2294.

Additionally, this court has extended the Nijhawan

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Bluebook (online)
783 F.3d 278, 2015 U.S. App. LEXIS 5787, 2015 WL 1591244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jose-mendoza-ca5-2015.