Appeal from the United States District Court for the Southern District of Texas.
For United States of America, Plaintiff - Appellee: Terri-Lei O'Malley, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.
For Jose Mendoza, also known as: Jose Mendoza-Arriola, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
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)(1)(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.
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). 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, 161 L.Ed.2d 205 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.
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 ...