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United States v. Sanchez-Sanchez

United States Court of Appeals, Fifth Circuit

February 24, 2015

UNITED STATES OF AMERICA Plaintiff -- Appellee
v.
JOSE ALFREDO SANCHEZ-SANCHEZ Defendant -- Appellant

Page 301

Appeal from the United States District Court for the Northern District of Texas.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Amanda R. Burch, Assistant U.S. Attorney, U.S. Attorney's Office, Lubbock, TX; Gail A. Hayworth, James Wesley Hendrix, Assistant U.S. Attorney, Brandon Nelson McCarthy, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX.

For JOSE ALFREDO SANCHEZ-SANCHEZ, Defendant - Appellant: Kevin Joel Page, Laura S. Harper, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Dallas, TX.

Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.

OPINION

Page 302

PATRICK E. HIGGINBOTHAM, Circuit Judge

Jose Alfredo Sanchez-Sanchez appeals his sentence and challenges the district court's application of an enhancement based on a prior Texas conviction for a crime of violence. We are asked to determine whether the district court was precluded

Page 303

from relying on a Texas state court's facially inconsistent judgment of conviction, which recited Sanchez-Sanchez's plea of guilty to aggravated assault with a deadly weapon but made no separate " affirmative findings" on the use of a deadly weapon. Finding the inconsistency fully explained by the law of Texas, which provides that entry of a separate affirmative deadly weapon finding is relevant only to sentencing and does not alter the underlying offense of conviction, we affirm.

I.

Sanchez-Sanchez pled guilty in 2013 to illegal reentry following deportation in violation of 8 U.S.C. § 1326. His presentence report (PSR) assigned a total offense level of 18, which included a 12-level enhancement pursuant to U.S.S.G. (" Guidelines" ) § 2L1.2(b)(1)(A)(ii) based on Sanchez-Sanchez's 1990 Texas felony conviction for aggravated assault with a deadly weapon. The PSR characterized the offense underlying the prior Texas conviction as a qualifying " crime of violence." [1]

Attached to the PSR were state court documents indicating that Sanchez-Sanchez was indicted in Texas in 1989 and charged with " knowingly and intentionally us[ing] a deadly weapon, to-wit: a knife, to threaten Mario Cervantes, with imminent bodily injury by use of the said deadly weapon." [2] He agreed to plead guilty to the offense charged in the indictment in exchange for two years of probation with deferred adjudication. His written plea agreement expressly stated, as an " [a]dditional provision[ ] of the agreement[,] no deadly weapon." [3] Sanchez-Sanchez subsequently violated the conditions of his probation and the court proceeded to adjudicate his guilt in November 1990.[4] The court's written judgment form recited, in a space marked, " OFFENSE CONVICTED OF," that Sanchez-Sanchez was convicted of aggravated assault with a deadly weapon. Nevertheless, consistent with the terms of his plea agreement, in a space marked, " FINDINGS ON USE OF DEADLY WEAPON," the judgment expressed " no findings." [5] Although the state court documents do not identify the statute of conviction, the parties agree that Sanchez-Sanchez was convicted under the 1988 version of Texas Penal Code § 22.02(a), which criminalizes " Aggravated Assault."

At sentencing for Sanchez-Sanchez's illegal reentry conviction, the district court concluded that the 1990 aggravated assault conviction qualified as a crime of violence under section 2L1.2(b)(1)(A)(ii) and applied

Page 304

the 12-level enhancement. Counsel for Sanchez-Sanchez did not object to the enhancement or the characterization of the underlying offense as a crime of ...


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