United States of America v. Juan Neri-Hernandes

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41173
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN NERI-HERNANDES
Defendant-Appellant
Appeal from the United States District Court for the
Southern District of Texas, McAllen Division
Before JOLLY, DAVIS and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge.
Defendant Juan Neri-Hernandes (Neri) appeals his sentence imposed after
a guilty plea conviction for being unlawfully present in the United States under
8 U.S.C. § 1326. Neri’s main argument is that the district court erred in looking
to the indictment and the Certificate of Disposition in determining whether
Neri’s prior New York conviction was a crime of violence for purposes of
imposing the enhancement under U.S.S.G. § 2L1.2. For the reasons set forth
below, we reject Neri’s argument and affirm.
I.
Neri pleaded guilty to being unlawfully present in the United States after
having been removed previously. The presentence report (PSR) assigned Neri
United States Court of Appeals
Fifth Circuit
F I L E D
October 12, 2007
Charles R. Fulbruge III
Clerk

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a base offense level of eight. He received a 16-level adjustment pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the probation officer determined that his
prior New York conviction for attempted assault was a crime of violence.
Following a two-level reduction for acceptance of responsibility, Neri's total
offense level was 22. His criminal history category was III. The resulting
guidelines range of imprisonment was 51 to 63 months.
Neri filed several objections to the PSR. He objected, inter alia, to the
16-level enhancement on the ground that the government failed to prove by
competent evidence that he had been convicted of a crime of violence under §
2L1.2. He also argued that § 1326(b) was unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000); however, he acknowledged that this
argument was foreclosed. Neri also moved for a downward departure on the
ground that his criminal history was over-represented.
Neri re-urged his objections and his motion at sentencing. The district
court overruled Neri's § 2L1.2 and Apprendi objections. With respect to Neri's
objection to the crime of violence enhancement, the district court found that the
certified copy of the Certificate of Disposition was reliable for purposes of
determining whether the prior conviction was a qualifying offense. The district
court relied on both the Certificate of Disposition and the indictment in
concluding that Neri's prior conviction was a crime of violence.
The district court granted Neri additional acceptance of responsibility and
early disposition points which resulted in a revised total offense level of 19. The
district court also granted Neri's motion for downward departure, finding that
his criminal history was slightly over-represented by a criminal history category
III. Accordingly, the district court reduced Neri's criminal history category to II.
The revised guidelines range of imprisonment was 33 to 41 months.

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No. 06-41173
1 Subsection 2 of the pertinent New York law provides: “A person is guilty of assault in
the second degree when: . . . with intent to cause physical injury to another person, he causes
such injury to such person or to a third person by means of a deadly weapon or a dangerous
instrument.” N.Y. PENAL LAW § 120.05(02) (McKinney 2000). An attempt under New York
law occurs “when, with intent to commit a crime, he engages in conduct which tends to effect
the commission of such crime.” N.Y. PENAL LAW § 110.00 (McKinney 2004). A conviction
under §§ 110.00 and 120.05(02), attempted assault in the second degree, would qualify as a
crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because the offense “has as an element the
use, attempted use, or threatened use of physical force against the person of another.” U.S.
SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A)(ii) (2005).
2 U.S.S.G. § 2L1.2 Commentary “provides that ‘crime of violence’ means any of the
following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of
credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt.
3
The district court sentenced Neri to 33 months of imprisonment and two
years of supervised release. Neri filed a timely notice of appeal.
II.
Neri challenges the district court's determination that his prior conviction
for attempted assault in the second degree is a crime of violence. Neri does not
dispute that he was convicted in New York state court of attempted assault in
the second degree, in violation of McKinney’s Penal Law § 120.05.1 However,
one or more of the prongs of this statute do not qualify as a crime of violence
under this Court’s categorical approach. Unless the government can establish
that he was convicted under one of the violent prongs of the statute, it would be
error for the district court to treat Neri’s prior New York conviction for
attempted assault as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).2
Neri contends that the documents on which the court relied in making its
determination are insufficient to show that he pleaded guilty to a particular
subsection of the New York statute. The district court was provided a copy of the
indictment for the offense which alleged that Neri committed the offense of
assault in the second degree, subsection 2 (a violent prong of the statute). Neri

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argues that the court should not consider the indictment because the crime to
which he pled guilty, the lesser included offense of attempted assault, was not
charged in that document. The district court also considered a certified copy of
a Certificate of Indictment which stated that Neri pleaded guilty to attempted
assault in the second degree, subsection 2 and was sentenced to one year of
imprisonment. Neri argues that the court should not consider this as evidence
because it is not reliable. Accordingly, he argues that because the government
did not establish by competent evidence that he pleaded guilty to a particular
subsection of the New York statute and because some subsections of the statute
do not satisfy the definition of a crime of violence, the district court should not
have imposed the enhancement.
Indictment
Neri contends that the district court erred in looking to the indictment (the
charging document) in this case to determine the subsection of the statute under
which he was convicted because Neri pleaded guilty to a different offense from
that for which he was indicted, citing United States v. Turner, 349 F.3d 833 (5th
Cir. 2003). In Turner, this Court addressed what role the charging instrument
should have upon a sentencing court's analysis of whether a prior conviction was
a crime of violence under U.S.S.G. § 4B1.2 where the defendant was convicted
of a lesser included offense. 349 F.3d at 836. The commentary to § 4B1.2
specifically authorizes a sentencing court to consider whether “the conduct set
forth (i.e., expressly charged) in the count of which the defendant was convicted
. . . by its nature, presented a serious potential risk of physical injury to
another.” U.S. SENTENCING GUIDELINE MANUAL § 4B1.2, cmt. n.1. But, because
“Turner pleaded guilty to a lesser included offense, and was not reindicted on the
lesser count,” this Court concluded that the district court could not rely on the
conduct set forth in the indictment when making the § 4B1.2 determination.
Turner, 349 F.3d at 836.

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In the instant case, the applicable guideline is § 2L1.2 which does not
contain commentary similar to the § 4B1.2 commentary at issue in Turner.
Compare U.S. SENTENCING GUIDELINE MANUAL § 4B1.2 with U.S. SENTENCING
GUIDELINE MANUAL § 2L1.2. However, the same rule has been applied in cases
addressing § 2L1.2. See United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th
Cir. 2007) (because Gonzalez-Ramirez never pleaded guilty to the indictment
charging aggravated kidnapping and rather pleaded guilty to attempted
kidnapping, that indictment could not be used to determine whether
Gonzalez-Ramirez's conviction was a crime of violence under U.S.S.G. § 2L1.2).
Accordingly, the district court cannot use the indictment to pare down the
statute of conviction to determine under which subsection Neri pleaded guilty.
Certificate of Disposition
Neri also argues that the district court should not have looked to the New
York Certificate of Disposition because the document is comparable to an
abstract of judgment and therefore not reliable. He cites the decision in United
States v. Gutierrez-Ramirez, 405 F.3d 352, 358 (5th Cir. 2005), as support for this
argument. In Gutierrez-Ramirez, this Court determined that the district court
erred under the categorical approach employed for sentencing enhancements
when it relied solely on a California abstract of judgment as a source to identify
the defendant’s conduct in a prior conviction. The abstract of judgment
identified the offense of conviction as a violation of California Health and Safety
Code § 11352, a statute that covers some conduct that would not qualify as a
“drug trafficking offense” under the Guidelines. See CAL. HEALTH AND SAFETY
CODE § 11352 (2000). The district court relied on a short description of the
offense, “sell cocaine,” inserted into a small space in the abstract of judgment,
to conclude that Gutierrez-Ramirez’s offense qualified as a drug trafficking
offense. Gutierrez-Ramirez, 405 F.3d at 358. Under California law, an abstract

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of judgment is not the judgment of conviction, and the preparation of the
abstract is a clerical rather than a judicial function. Id. at 357. Most
significantly, the “form simply calls for the identification of the statute of
conviction and the crime, and provides a very small space in which to type the
description.” Id. Therefore, the factual information on the form identifying the
offense does not reflect a “conscious judicial narrowing of the charging
document.” Id. at 358. Accordingly, under Taylor and Shepard, the abstract of
judgment was not the type of document the court could look to for the facts of the
offense to determine whether the defendant was convicted under part of a
statute that meets the enhancement definition. See Shepard v. United States,
544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990).
The facts of this case do not implicate Taylor and Shepard. The district
court did not look to the Certificate of Disposition for underlying facts of Neri’s
offense from which to determine whether he was convicted of a type of attempted
assault that qualifies as a crime of violence. Rather, the Certificate of
Disposition was used as proof of the existence of the prior conviction. The
Certificate details Neri's guilty plea and sentence, and it specifies a subsection
of the statute under which Neri was convicted, noting that he pleaded guilty to
“Attempted Assault 2nd Degree PL 110-120.05 02 EF.” The reference to “02” is
to subsection (2) of § 120.05, one of the subsections that qualifies the offense as
a “crime of violence.”
As recognized by the Tenth Circuit in United States v. Zuniga-Chavez, 464
F.3d 1199 (10th Cir. 2006), Shepard does not apply when determining whether
the government has satisfied its burden of proof as to the existence of a prior
conviction. In Zuniga-Chavez, the defendant challenged whether the
government had proved five prior offenses by use of a certified docket sheet,
certified copy of an abstract of judgment, and court case summaries for the
purpose of raising his offense level and criminal history. Id. at 1201. The

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offense on the certified copy of the abstract of judgment was used to enhance the
defendant’s sentence as a felony drug trafficking offense. There was no question
whether the prior offense, “possession of marijuana for sale,” fell within the
definition of a felony drug trafficking offense. The Tenth Circuit started its
analysis with U.S.S.G. § 6A1.3(a) which states that the guidelines allow the use
of information to make sentencing determinations so long as “the information
has sufficient indicia of reliability to support its probable accuracy.” Id. at 1203.
It distinguished Shepard stating that opinion “did not address what documents
can be used to prove the fact of a prior conviction.” Id. at 1204. Rather, Shepard
addressed “what documents can be used to prove . . . the facts underlying a
[prior] conviction” when the elements of the state crime do not necessarily fall
within a sentencing enhancement. Id. (emphasis omitted). The Tenth Circuit
concluded that the certified docket sheet and certified abstract of judgment
sufficed to prove the prior convictions. Id. at 1203. “A case summary obtained
from a state court and prepared by a clerk — even if not certified by that court
— may be sufficiently reliable evidence of conviction for purposes of enhancing
a federal sentence where the defendant fails to put forward any persuasive
contradictory evidence.” Id. at 1205.
We agree with Zuniga-Chavez and conclude that the question in this case
is whether the New York Certificates of Disposition have sufficient indicia of
reliability to support their probable accuracy such that the documents can be
used as evidence of Neri’s prior conviction under the subsection of a statute that
qualifies as a crime of violence.
Under New York law, a Certificate of Disposition is a judicial record of the
offense of which the defendant was convicted and “constitutes presumptive
evidence of the facts stated in such certificate.” United States v. Green, 480 F.3d
627, 632 (2nd Cir. 2007) (quoting N.Y. CRIM. PROC. LAW § 60.60(1)).

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Such certificates are regularly considered by the New York courts
in deciding whether the sentence on a given defendant should be
enhanced on the ground that he has previously been convicted of a
certain type of crime or a certain number of crimes.
Id. In other words, a Certificate of Disposition is admissible to determine the
nature of a prior conviction and has sufficient indicia of reliability for the court
to rely on it to establish this fact. However, the Certificate, is not conclusive and
may be rebutted. For example, where the defendant shows a likelihood of
human error in the preparation of the Certificate, the court may decline to rely
on it. Id. at 631.
Neri produced no evidence calling into question the reliability of the
Certificate, and the district court did not err in using it to establish that Neri
had been convicted of a violation of subsection 02 of a New York statute, a crime
of violence.
III.
For the foregoing reasons, Neri’s sentence is AFFIRMED.
AFFIRMED.

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