IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40646

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

HELIODORO VELASQUEZ-TORREZ, also known as Andre Ramirez-Gomes,

also known as Heliodoro Velasquez-Torres,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, SMITH, and OWEN, Circuit Judges.

PER CURIAM:

Heliodoro Velasquez-Torrez appeals his sentence imposed following

conviction for illegal reentry by a deported alien. Velasquez-Torrez argues that

the district court committed plain error when it enhanced his sentence based on

a prior conviction and deportation. We affirm.

I

Velasquez-Torrez, a Mexican national who had previously been deported,

was apprehended by United States Border Patrol agents in 2009, near Freer,

Texas. Because he lacked permission to be in the United States, VelasquezTorrez was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b).

The indictment did not specifically identify the date of Velasquez-Torrez’s

United States Court of Appeals

Fifth Circuit

F I L E D

June 18, 2010

Lyle W. Cayce

Clerk

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previous deportation. It merely stated that he was an alien who had previously

been removed from the United States and was unlawfully present in the United

States without having first obtained the consent of the Attorney General of the

United States or the Secretary of the Department of Homeland Security to apply

for admission.

At rearraignment, the district court explained to Velasquez-Torrez the

elements that the government was required to prove under § 1326. VelasquezTorrez affirmed that he understood the charge, had read it completely, and had

discussed it completely with his attorney. When asked whether VelasquezTorrez had been convicted of any felonies, the prosecutor stated that VelasquezTorrez had an “assault/family violence, third degree felony out of Harris County

in April of ‘08.” The district court then informed Velasquez-Torrez that the

felony could cause a 16-level increase in his base offense level, and VelasquezTorrez declared that he understood.

The prosecutor summarized his evidence as follows:

In the case of Mr. Velasquez, Your Honor, the United

States can prove, through competent and legal

witnesses, that on or about January the 21st, 2008 [sic],

Mr. Velasquez was encountered by Border Patrol

Agents near Freer, Texas. United States can prove that

he is an undocumented alien from the country of

Mexico, who is illegally present in the United States.

We can further prove that he was removed from the

United States previously through Hidalgo, Texas, Port

of Entry, on January the 23rd, 2004. And we can prove

that there is no record or evidence that Mr. Velasquez

has applied for or received permission from the

Attorney General of the United States or the Secretary

of the Department of Homeland Security to re-enter the

United States.

Although the prosecutor’s statement that Velasquez-Torrez had been found near

Freer, Texas on January 21, 2008, was incorrect because the date was actually

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January 21, 2009, Velasquez-Torrez affirmed that he had heard the prosecutor’s

statement and that the statement was correct. The district court again asked

if there was a prior felony, and the prosecutor stated that he could prove that

Velasquez-Torrez was convicted on April 3, 2008, for assault/family violence.

Velasquez-Torrez pleaded guilty to illegally reentering the United States

after he had been deported, and the district court accepted the plea. Before the

date set for sentencing, the United States Probation Office prepared a

Presentence Investigation Report (PSR). The PSR stated that Velasquez-Torrez

had been deported to Mexico on two occasions: on January 23, 2004, and again

on November 15, 2008, following his conviction for assault on a family member.

The PSR assigned an initial base offense level of eight. Eight levels were added

to the offense level because Velasquez-Torrez had been previously deported after

a conviction for an aggravated felony. The PSR deducted three levels for

acceptance of responsibility, giving Velasquez-Torrez a total offense level of

thirteen. Considering his combined criminal history score and total offense

level, the PSR calculated the guidelines range as thirty to thirty-seven months

and recommended a sentence within that range. Although the statutory

maximum for illegal reentry is two years’ imprisonment pursuant to 8 U.S.C. §

1326(a), Velasquez-Torrez’s prior conviction and subsequent removal raised the

maximum to twenty years pursuant to 8 U.S.C. § 1326(b).

At his sentencing, Velasquez-Torrez affirmed that he had received and

read the PSR. Through counsel, Velasquez-Torrez stated that there were no

mistakes in the report, although he “remained silent on Paragraph 28,” which

contained a narrative discussing the facts of his prior assault conviction. The

district court sentenced Velasquez-Torrez to thirty-seven months of

imprisonment and three years of supervised release. Velasquez-Torrez now

appeals, arguing that his 2008 removal was not proven beyond a reasonable

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doubt in order to increase the statutory maximum sentence he could receive

under 8 U.S.C. § 1326(b)(2).

II

Because Velasquez-Torrez did not object to the use of his 2008 removal in

the district court, we review his claim for plain error. Under this standard,

1

Velasquez-Torrez must demonstrate that “(1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected

[his] substantial rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”

2

III

Under 8 U.S.C. § 1326(a), an alien who is guilty of illegal reentry into the

United States may be sentenced to no more than two years of imprisonment.

This statutory maximum, however, may be increased if the alien has been

convicted of certain crimes. Under § 1326(b)(2), an alien who has previously

been removed subsequent to a conviction for an aggravated felony may be

sentenced to up to twenty years of imprisonment. In order for a defendant to

receive this enhanced sentence, the government must prove that the removal

occurred after the felony conviction. “[T]he fact of the deportation must be

3

admitted or proven to a jury beyond a reasonable doubt.” A court may not

4

“rel[y] on a PSR to establish sentencing facts that increases [sic] the penalty

See United States v. Rojas-Luna, 522 F.3d 502, 504 (5th Cir. 2008).

1

United States v. Marcus, No. 08-1341, 2010 WL 2025203, at *3 (U.S. May 24, 2010) 2

(internal quotation marks omitted).

See Rojas-Luna, 522 F.3d at 505-06. 3

See United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009) (citing Rojas-Luna,

4

522 F.3d 502).

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beyond the statutory maximum.” “However, reliance on a defendant’s

5

admission of facts that are contained in the PSR is permissible.”

6

Velasquez-Torrez argues that the district court erred when it enhanced his

sentence under § 1326(b)(2). He points out that the indictment did not mention

any prior convictions or a specific date of removal. At the rearraignment, the

Government proffered as evidence a 2008 conviction and a 2004 removal. As

Velasquez-Torrez notes, the 2004 removal did not occur after the 2008

conviction. His later 2008 removal, which did occur after the felony conviction,

was first mentioned in the PSR. Under United States v. Rojas-Luna, the district

court may not rely on the PSR to establish that a defendant was removed

subsequent to a conviction. Therefore, according to Velasquez-Torrez, the

7

district court’s reliance on his 2008 removal as a basis for enhancing his

sentence was plain error.

Velasquez-Torrez’s argument is unconvincing given this court’s

jurisprudence on the question of sentence enhancements, principally RojasLuna and United States v. Ramirez. In Rojas-Luna, the defendant pleaded

8 9

guilty to reentering the United States illegally. The factual basis for the

10

charge was that Rojas-Luna had been deported in 1988 and had reentered the

United States in 2006. No mention was made of a prior conviction. The

11

subsequent PSR, however, noted that Rojas-Luna was convicted of aggravated

Id. at 204. 5

Id.

6

See Rojas-Luna, 522 F.3d 502.

7

Id.

8

Ramirez, 557 F.3d 200.

9

Rojas-Luna, 522 F.3d at 503.

10

Id.

11

5

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No. 09-40646

assault in 2003 and was removed in 2006. Because Rojas-Luna had been

12

convicted and subsequently removed, the district court enhanced his sentence

under § 1326(b)(2). On appeal, we held that the district court’s reliance on the

13

2006 removal, when this fact had not been proven to a jury or admitted by RojasLuna, was plain error.

14

In Ramirez, we dealt with facts that differed slightly, but materially, and

came to a different conclusion. Ramirez pleaded guilty to illegal reentry at his

15

rearraignment. The indictment and factual basis for his plea did not specify

16

the date of his removal. After his plea, the PSR reflected that Ramirez had

17

been convicted of aggravated assault in 2003 and deported in 2005. Relying on

18

the conviction and deportation mentioned in the PSR, the district court

increased Ramirez’s sentence beyond the statutory maximum contained in

§ 1326(a). On appeal, Ramirez argued that the district court’s reliance on the

19

2005 removal was plain error under Rojas-Luna. We disagreed. We noted

20 21

that, whereas in Rojas-Luna the defendant had not admitted to the relevant

deportation, Ramirez and his counsel “affirmed specifically that they had read

Id.

12

Id.

13

Id. at 506-07. 14

United States v. Ramirez, 557 F.3d 200 (5th Cir. 2009). 15

Id. at 202. 16

Id. at 204. 17

Id.

18

Id. at 202-03. 19

Id. at 203. Ramirez raised the issue for the first time in a reply brief, but we 20

exercised our discretion to address the merits of the argument.

Id. at 205. 21

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the PSR, reviewed it for legal and factual accuracy, and made no objections to

it.” While reliance on a PSR alone to establish the fact of a defendant’s removal

22

is improper, “reliance on a defendant’s admission of facts that are contained in

the PSR is permissible.” Because Ramirez implicitly admitted the accuracy of

23

the PSR, the district court did not plainly err in relying on the facts contained

therein.

24

In this case, the district court relied on Velasquez-Torrez’s 2008

deportation to increase his sentence beyond the statutory maximum. While

Velasquez-Torrez’s 2008 deportation was not proven to a jury, it was described

in the PSR. At his sentencing, Velasquez-Torrez stated that he had received and

read the PSR. Beyond “remaining silent” on a section of the PSR discussing the

facts of his prior assault conviction, Velasquez-Torrez through counsel affirmed

that the PSR contained no mistakes. Just as in Ramirez, Velasquez-Torrez

agreed to the accuracy of the PSR. Having admitted the fact of his deportation,

Velasquez-Torrez cannot now argue that the district court improperly relied on

that deportation. Therefore, the district court did not commit error, much less

plain error, when it enhanced Velasquez-Torrez’s sentence pursuant to

§ 1326(b)(2).

* * *

For the foregoing reasons, the district court’s judgment is AFFIRMED.

Id. at 204. 22

Id. 

23

Id. at 204-05. 24

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