Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50673

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDWIN JOSE ESCOBAR-ORTEZ, also known as Jose Carlos Rodriguez,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-995-1

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

Edwin Jose Escobar-Ortez (Escobar) pleaded guilty to illegal reentry

following deportation. Because Escobar had been convicted of a crime of violence

- robbery in Texas - prior to deportation, the presentence report recommended

increasing his offense level by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

At sentencing, Escobar argued that although the Government submitted

the judgment and the indictment regarding his robbery conviction in Texas,

those documents were not sufficient to prove that Escobar had committed

United States Court of Appeals

Fifth Circuit

F I L E D

June 3, 2010

Lyle W. Cayce

Clerk

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No. 09-50673

2

robbery. Specifically, Escobar argued that although he was charged with

aggravated robbery, he pleaded guilty to a lesser charge. In support of this

argument, Escobar relied on the state court judgement. Typed on the judgment,

which is a preprinted form, is the statement that Escobar was charged with

“aggravated robbery, a 1st degree felony offense as charged in the indictment.”

Preprinted next on the judgment is the statement that “the State having filed

[a] written Motion to reduce the offense charged to the lesser and included

misdemeanor offense of:” followed by the typed statement “robbery a 2nd degree

felony offense as charged in the indictment.” Escobar argued that because the

preprinted term “lesser and included misdemeanor offense” conflicts with the

typed term “robbery a 2nd degree felony,” the Government had not proven that

he committed a robbery. The district court overruled Escobar’s objection and

determined that Escobar’s guidelines range was 37 to 46 months in prison. The

court sentenced Escobar to 37 months in prison and to three years of supervised

release.

Following United States v. Booker, 543 U.S. 220 (2005), sentences are

reviewed for reasonableness in light of the sentencing factors in § 3553(a).

United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall

v. United States, 552 U.S. 38, 51 (2007), this court engages in a bifurcated

analysis of the sentence imposed by the district court. United States v. DelgadoMartinez, 564 F.3d 750, 752 (5th Cir. 2009). The court first examines whether

the district court committed any procedural errors, “such as failing to calculate

(or improperly calculating) the Guidelines range . . . .”Gall, 552 U.S. at 51. If

there is no such error or the error is harmless, the reviewing court may proceed

to the second step and consider the substantive reasonableness of the sentence.

See Delgado-Martinez, 564 F.3d at 751-53. 

Escobar argues here that the Government did not carry its burden of

proving that he had been convicted of robbery. Escobar reasons that based on

the contradictions in the judgment cited above, he was convicted of either a

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lesser included misdemeanor offense or a 2nd degree felony robbery. Escobar

argues that in Texas, theft is a lesser included offense of robbery, and based on

the facts of his offense, his conviction could have been for a Class B misdemeanor

theft offense. Escobar concedes that Texas robbery is a “crime of violence” under

the Guidelines based on United States v. Santiesteban-Hernandez, 469 F.3d 376,

378 (5th Cir. 2006).

The Government responds that the facts alleged in the indictment, that

Escobar cut and stabbed his victim with a broken bottle in the course of

committing theft of his victim’s cash, tracks the language of the Texas robbery

offense. The Government also responds that the manually-entered information

on the judgment establishes that Escobar was convicted of robbery and that that

information controls over the printed information. 

This court reviews the district court’s interpretation or application of the

Guidelines de novo and its factual findings for clear error. United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The Government bears

the burden of proving by a preponderance of the relevant and reliable evidence

the facts supporting a sentencing enhancement, including prior convictions.

United States v. Rodriguez, 523 F.3d 519, 524 (5th Cir. 2008).

Because the typed portion of the judgment conflicts with the preprinted

portion of the judgment, we find that the typed portion of the judgment controls.

See THE ADDISON E. BULLARD, 258 F. 180, 182 (5th Cir. 1919); see also

Thomas v. Taggart, 209 U.S. 385, 389 (1908). The typed portion of the judgment

provides that Escobar pleaded guilty to “robbery a 2nd degree felony offense as

charged in the indictment.” Texas robbery is characterized as a crime of violence

for the purposes of a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii).

Santiesteban-Hernandez, 469 F.3d at 381. 

Moreover, the charges in the indictment analyzed in light of the offenses

of robbery by bodily injury and simple theft show that Escobar could not have

pleaded guilty to the lesser included offense of simple theft. Initially, what

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constitutes a lesser included offense in Texas is defined by statute, and that

definition applies to guilty pleas and to trials. See Murray v. State, 302 S.W.3d

874, 877 (Tex. Crim. App. 2009); TEX. CODE CRIM P. art. 37.09.

The theory set forth in the indictment indicates that Escobar committed

theft by inflicting bodily injury by stabbing and cutting the victim with a broken

bottle. These facts could constitute robbery by bodily injury. See Castillo v.

State, 944 S.W.2d 440, 442 (Tex. App. 1997). However, they could not constitute

simple theft. See TEX. PENAL CODE § 31.03; Bignall v. State, 887 S.W.2d 21, 23

(Tex. Crim. App. 1994). In Bignall, the court stated that “if any evidence exists

in the record that would permit a rational jury to find that a deadly weapon was

not used or exhibited, Appellant is entitled to an instruction on theft.” Id. at 23.

Because Escobar pleaded guilty “as charged in the indictment,” he admitted to

cutting and stabbing his victim with a broken bottle, which negates any

argument that he could have pleaded guilty to the lesser included offense of

simple theft. Id.

Thus, the district court did not err by finding that the Government proved

that Escobar had been convicted of robbery, a crime of violence, prior to

deportation and that a 16-level enhancement to his base offense level was

warranted. The district court’s decision is AFFIRMED.

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