IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50682

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CESAR SERGIO MILLER-ORTIZ, also known as Cesar Ortiz-Sonora,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-1073-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Cesar Sergio Miller-Ortiz (Miller) appeals the sentence imposed upon his

guilty-plea conviction for illegal reentry. See 8 U.S.C. § 1326. In calculating

Miller’s guideline range of imprisonment,the district court applied an eight-level

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) based on Miller’s prior

Nebraska conviction for theft by receiving stolen property. Section

2L1.2(b)(1)(C) provides that the offense level for unlawfully entering the United

States should be increased by eight levels if the defendant was previously

United States Court of Appeals

Fifth Circuit

F I L E D

October 29, 2010

Lyle W. Cayce

Clerk

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.

Case: 09-50682 Document: 00511278726 Page: 1 Date Filed: 10/29/2010
No. 09-50682

removed subsequent to an aggravated felony conviction. The definition of

“aggravated felony” includes “a theft offense (including receipt of stolen

property). 8 U.S.C. § 1101(a)(43)(G); § 2L1.2, comment. (n.3).

Miller argues (1) that the district court erred in assessing the eight-level

enhancement pursuant to § 2L1.2(b)(1)(C) because it did not have sufficient

information before it from which to ascertain the elements of the Nebraska

offense and (2) that the Nebraska statute of conviction criminalizes different

methods of committing theft, including methods that cannot form the basis for

a sentencing enhancement under § 2L1.2(b)(1)(C). He argues that his prior

Nebraska conviction warranted only a four-level increase in his offense level

because it qualifies as a felony but not as an aggravated felony.

As Miller concedes, any error resulting from the enhancement is subject

to plain error review because he did not object to the enhancement in the district

court. FED.R.CRIM.P. 52(b); United States v. Villegas, 404 F.3d 355, 358 (5th Cir.

2005). Plain error review involves the following four prongs: First, there must

be an error or defect that has not been affirmatively waived by the defendant.

Second, the error must be clear or obvious, i.e., not subject to reasonable dispute.

Third, the error must have affected the defendant’s substantial rights. Fourth,

if the above three prongs are satisfied, this court has the discretion to correct the

error only if it “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)

(internal quotation marks and citation omitted).

Miller’s first argument is factually incorrect. As Miller acknowledges, the

district court had before it a copy of the Nebraska judgment of conviction. It was

appropriate for the district court to consider and rely upon this state court

document in determining the applicability of the enhancement under

§ 2L1.2(b)(1)(C). See Taylor v. United States, 495 U.S. 575, 602 (1990); Shepard

v. United States, 544 U.S. 13, 16 (2005).

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No. 09-50682

Miller acknowledges in his appeal brief that the Nebraska statute of

conviction was NEB. REV. STAT. § 28-517 (2008). Nebraska’s definition of theft

by receiving stolen property is almost identical to the definition in the Model

Penal Code § 223.6(1). See United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th

Cir. 2006). Nebraska’s definition also falls within the generic, contemporary

definition of “a theft offense.” § 1101(a)(43)(G); see Burke v. Mukasey, 509 F.3d

695, 697 (5th Cir. 2007). Thus, the district court correctly determined that

Miller’s prior Nebraska conviction was for an “aggravated felony” within the

meaning of § 2L1.2(b)(1)(C) and that the enhancement was proper. Miller has

not shown that the district court erred in applying the eight level enhancement.

See Puckett, 129 S. Ct. at 1429.

AFFIRMED.

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Case: 09-50682 Document: 00511278726 Page: 3 Date Filed: 10/29/2010