United States v. Morales

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

2 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

3 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.

4 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

5 “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

6 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

7 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)

8 (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,

9 544 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.