IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40168

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE MENDOZA, also known as Jose Mendoza-Arriola, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

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. 

United States Court of Appeals

Fifth Circuit

FILED

April 9, 2015

Lyle W. Cayce

Clerk

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No. 14-40168

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 (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 (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).1 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 

1 Application Note 3(A) to U.S.S.G. § 2L1.2 defines “aggravated felony” by 

incorporating 8 U.S.C. § 1101(a)(43)(D). 

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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 and Taylor v. United States, 495 U.S. 575 

(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 

governed by Nijhawan v. Holder, 557 U.S. 29 (2009), not Shepard or Taylor. 

In Nijhawan the Supreme Court held that when a statute “does not refer 

to generic crimes but refers to specific circumstances,” Taylor does not apply. 

557 U.S. at 37. A generic crime would include “the crime of fraud or theft in 

general.” Id. at 34. In contrast, a specific circumstance refers to the “specific 

way in which an offender committed the crime on a specific occasion.” Id.

In Nijhawan, the question was whether the fraud offense was an 

aggravated felony for deportation purposes when the statute defining 

aggravated felony had a $10,000 threshold requirement but the charged 

statute for the prior conviction did not. Id. at 32. The Court noted that the 

definitional statute, 8 U.S.C. § 1101(a)(43), contains a long list of offenses, 

several of which clearly do not refer to generic crimes. Id. at 37–38; See also,

e.g., 8 U.S.C. § 1101(a)(43)(M)(i) (stating that fraud is an aggravated felony if 

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the loss exceeds $10,000), (P)(ii) (stating that forging a passport is an 

aggravated felony if the maximum term of imprisonment is at least 12 months, 

unless the alien was only helping a “spouse, child, or parent”). Since there is 

no generic crime equivalent to some of the Section 1101(a)(43)’s subdivisions, 

the Court held that those subdivisions must refer to “particular circumstances 

in which an offender committed the crime on a particular occasion.” Nijhawan, 

557 U.S. at 38. 

Having found the circumstance-specific approach applicable, the Court 

held that it could “find nothing unfair about the Immigration Judge’s having 

here relied upon earlier sentencing-related material” in determining that a 

conviction qualified as an aggravated felony. Id. at 42. Specifically, the Court 

held that it was permissible for the Immigration Judge to consider the 

defendant’s stipulation at sentencing and the court’s restitution order for the 

prior conviction to determine the amount of loss involved in the crime. Id. at 

42–43. 

Additionally, this court has extended the Nijhawan circumstancespecific analysis beyond the immigration context, to criminal law, when faced 

with facts similar to those in this case. United States v. Gonzalez-Medina, 757 

F.3d 425, 428–32 (5th Cir. 2014), applied the circumstance-specific approach 

to determine if a state sexual assault conviction satisfied the elements of the 

federal Sex Offender Registration and Notification Act (“SORNA”). In 

Gonzalez-Medina the defendant was convicted for failing to register as a sex 

offender under SORNA. SORNA exempted from the definition of sex offender 

offenses where the victim was over thirteen and the perpetrator was not more

than four years older than the victim. Id. at 428 (citing 42 U.S.C. § 

16911(5)(C)). The defendant challenged his failure-to-register conviction on 

the basis that, applying the categorical approach, the statute of his prior 

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conviction did not qualify as a sex offense under SORNA because it did not 

contain SORNA’s age exception. After a careful examination of the text of 

SORNA, this court found that the categorical approach did not apply, and that 

there was no error in the district court’s consideration of evidence presented

by the government showing the defendant’s and victim’s ages for the prior 

conviction. Id. at 431–32. 

Applying Nijhawan to this case, we turn to the language of Section 

1101(a)(43)(D), which defines an aggravated felony as “an offense described in 

section 1956 of Title 18 [the section Mendoza was convicted under] . . . if the 

amount of the funds exceeded $10,000.” The first step in the Nijhawan 

analysis is to determine if this section defines a generic crime or a specific 

circumstance. 

Section 1101(a)(43)(D) clearly refers to a specific circumstance. The 

language “if the amount of the funds exceeded $10,000,” creates a subcategory 

of money laundering convictions that qualify as aggravated felonies. Absent 

this provision, the section would refer to generic money laundering. But, its 

inclusion clearly signals that Congress intended for only a subcategory of 

money laundering offenses—those over $10,000—to be classified as aggravated 

felonies. Understood another way, a court determining the applicability of 

Section 1101(a)(43)(D) must look beyond the text of the money laundering 

statutes to determine if the funds from the underlying crime exceeded $10,000

because the statutes themselves say nothing about the amount of lost money. 

Indeed, Nijhawan itself involved an identical $10,000 threshold requirement, 

and the Supreme Court found that requirement to be circumstance specific 

rather than an element of the offense. 557 U.S. at 40. 

Consider also that interpreting Section 1101(a)(43)(D) under the generic 

crime categorical approach would render the section meaningless. The 

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No. 14-40168

categorical approach would hold that only those crimes defined in 18 U.S.C. § 

1956 which include as an element that the laundered funds exceed $10,000 are 

aggravated felonies. This would render the section meaningless because no 

crime in 18 U.S.C. § 1956 contains a $10,000 loss requirement. 

The district court, therefore, was not determining whether a prior 

conviction met the elements of a generic crime in a statute. The restrictions 

set forth in Shepard and Taylor did not apply. The district court did not err in 

considering the PSR and attached documents in order to determine if 

Mendoza’s conviction for conspiring to launder money was an aggravated 

felony. 

The PSR and the attached documents show that Mendoza was charged 

with money laundering under 18 USC § 1956 and pleaded guilty to that count. 

The evidence submitted to the district court also shows, by a preponderance of 

the evidence, that Mendoza’s money laundering involved more than $10,000. 

See United States v. Teuschler, 689 F.3d 397, 399 (5th Cir. 2012) (“The 

Government bears the burden of proving by a preponderance of the relevant 

and reliable evidence that the facts support a sentencing enhancement.”

(internal quotation marks omitted)); see also Hakim v. Holder, 628 F.3d 151, 

153–55 (5th Cir. 2010) (holding that Section 1101(a)(43)(D) requires that the 

money laundering involve more than $10,000, not that $10,000 or more was 

tainted). The PSR given to the court described the prior conviction for money 

laundering as involving at least $52,120. This, absent evidence to rebut it, is 

sufficient to support the district court’s determination that Mendoza’s money 

laundering involved more than $10,000. See United States v. Alaniz, 726 F.3d 

586, 619 (5th Cir. 2013) (“Generally, a PSR bears sufficient indicia of reliability 

to permit the sentencing court to rely on it at sentencing. In the absence of 

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rebuttal evidence, the sentencing court may properly rely on the PSR and 

adopt it.” (internal alterations and quotation marks omitted)). 

In conclusion, whether a defendant’s previous money laundering 

conviction satisfies 8 U.S.C. § 1101(a)(43)(D)’s $10,000 threshold is a question 

of specific circumstances. The evidence a court may consider under a specific 

circumstances inquiry is broader than the evidence that may be considered 

under a modified-categorical analysis inquiry. The district court, therefore, 

did not err in examining the PSR in order to determine that Mendoza 

committed an aggravated felony. We AFFIRM the district court’s ruling.

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