Equivocal Opinion on Shepard Documents

United States v. Neri-Hernandez (06-41173)(5th Cir. Oct. 12, 2007)(Jolly, Davis, Weiner)

This case a defendant’s 16 level sentence enhancement for a prior "crime of violence." The defendant’s prior offense was a New York conviction for second degree assault. That statute includes multiple disjunctive subsections, some of which fall within the 16 level enhancement, and others of which do not. The defendant first argued that the district court erred in consulting his indictment because he pleaded guilty to an offense different from that alleged in the indictment. The court agreed that this was an improper use of the indictment but nonetheless affirmed the sentence because other reliable evidence demonstrated the branch of the statute at issue.
Specifically, the court distinguished United States v. Gutierrez-Ramirez – a case disapproving of a district court’s use of a California "abstract of judgment" – and found that the New York "certificate of disposition" was a sufficiently reliable judicial record to warrant the district court’s reliance.
But its logic in this regard borders on the incoherent. The court stresses that the New York certificate was used only to establish the existence of the conviction, and holds that district courts are not limited to the Shepard documents in this limited context. But the opinion then concludes by finding the certificate is adequate to show the particular statutory subsection of which the defendant was convicted. It does not identify the certificate with any of the documents named in Shepard. The broader proposition at issue -- whether a district court is actually limited to the documents listed in Shepard in determining the branch of the defendant's prior statute -- is thus not clearly resolved.