1 United States Court of Appeals

Fifth Circuit



## FILED

February 10, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 03-20102

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UNITED STATES OF AMERICA

Plaintiff-Appellee

VERSUS

ARMANDO LOPEZ HERNANDEZ

Defendant-Appellant

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Appeal from the United States District Court

for the Southern District of Texas

(H-02-CR-544-1)

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Before DAVIS & EMILIO M. GARZA, Circuit Judges, and LITTLE*, District Judge.

LITTLE, District Judge:**

Appellant, Armando Lopez Hernandez (“Hernandez”) questions the district court’s judgment

of conviction and sentence entered in January 2003. Specifically, Hernandez asserts that the district

court improperly credited him with a state court conviction for aggravated assault. In so doing,

the criminal history points accorded to Hernandez under U.S. Sentencing Guideline (“USSG”)

§§ 4 A1.1 (c) & (d) were excessive and should not have been assessed. As we explain in this opinion,

the district court correctly applied the appropriate number of criminal history points. Thus, we affirm

the district court’s sentence.

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*District Judge of the Western District of Louisiana, sitting by designation.

**Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not2

precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

BACKGROUND

The material uncontested facts preceding the district court’s imposition of sentence are

uncomplicated. Hernandez was indicted on 7 August 2002 in the Houston Division of the Southern

District of Texas for illegal reentry after deportati on after an aggravated felony c o nviction, in

violation of 8 U.S.C.§ 1326 (a)(b)(2). The government alleges that on 3 July 1996, Hernandez was

convicted of felony aggravated assault in a Texas state court and sentenced to five years in prison,

probated for five years. Hernandez is a citizen of Mexico, and as a result of the state court felony

conviction, was deported t o his co unt ry of origin in July of 1996. Less that five years after

deportati on, Hernandez illegally reentere d t he United States. During the period of illegal reentry,

Hernandez admitted to the commission of two crimes in North Carolina. The North Carolina

convictions resulted in jail time sentences.

On 27 June 2002, the INS located Hernandez in Houston, where he was i ncarcerated for

state probation violations. On 12 July 2002, Hernandez’s aggravated assault conviction was revisited

by Texas state judicial process. The writing dealing with the former state court conviction declared

“Therefore, the community super visio n period is terminated, and it is ordered, adjudged , and

decreed: unsatisfactorily terminated-void judgment.” Hernandez entered a guilty plea to

illegal reentry.

Subsequent to the g u ilty plea, the U.S. Probation officer prepared a Presentence Report

(“PSR”). In that report, the probation officer calculated the defendant’s criminal history points. The

calculation included points for the state court aggravated assault conviction. The PSR suggested

that Hernandez had experienced a total offense level of twenty one points, which included a sixteen-3

level increase for the Texas aggravated assault conviction. The criminal history category was also

impacted by the Texas felony conviction. The sentence range suggested by the U.S.S.G.

was 46 to 57 months.

Hernandez f

o und fault with the calculations of the probation officer. He contended to the

sentencing judge, and in these proceedings as well, that the Texas state court felony judgment is void

and that no points to his detriment should flow from that whitewashed judgment.

The meaning of the phrase “unsatisfactorily terminated-void judgm ent” was the topi c of

further investigation by the probation officer. After discussions with Texas state court personnel, the

probation officer amplified her original PSR. She informed t he court and the defendant that the

phrase did not void the underlying criminal conviction but was standard verbiage employed by the

court to terminate community supervision or probation. The pro bation portion of the judgment

tethered to the criminal judgment was terminated due to Hernandez’s post conviction illegal activity.

The probation officer, reflecting an apparent atti tude of fairness, invit ed Hernandez to supply

documentation to support his position that the entire criminal judgme nt was void. No addi ti onal

information was provided to the trial court. The trial court adopted the PSR. A 57 month sentence

was imposed. This appeal followed the imposition of sentence.

ANALYSIS

The legal interpretation and application of the sentencing guidelines are reviewed de novo by

this court. We review the factual findings of the trial court in connection with sentencing for clear

error. U nited States. v. Parker , 133 F.3d 322, 329 (5th Cir.1998) (citation omitted). The burden is

upon Hernandez to prove that the state court in fact declared his aggravated assault conviction void.

Facts contained in a PSR are considere d reliable and may be adopted without further4

inquiry if the defendant fails to present competent rebuttal evidence. See United States

v. Puig-Infante , 19 F.3d 929, 943 (5th Cir. 1994). Such rebuttal evidence mu s t

demonstrate that the PSR information is “materially untrue, inaccurate or unreliable,” s ee

United States v. Angulo

, 927 F.2d 202, 205 (5th Cir. 1991). Mere objecti ons do not

suffice as competent rebuttal evidence. See Puig-Infante , 19 F.3d at 943.

United States v. Parker , 133 F.3d at 329.

The probation officer determined from state court authorities that the probation porti on of

the criminal judgment had been terminated in standard form, not the entire judgment. The trial court

adopted that analysis. Hernandez failed to disabuse the court from that determination. The judgment

is AFFIRMED.