Defendant's Admission That PSR Was Correct Costs Him On Plain Error Review of Otherwise Erroneous Sentence Enhancement

United States v. Velasquez-Torres, No. 09-40646 (5th Cir. June 18, 2010) (per curiam) (Jolly, Smith, Owen)

Here we have another object lesson in the perils of admitting—explicitly or implicitly—the accuracy of the PSR.

Recall that, under the illegal reentry statute, 8 U.S.C. § 1326, enhanced penalties apply if an alien was deported after having been convicted of a qualifying offense. Which brings us to Mr. Velasquez. He'd been deported twice before, in 2004 and 2008. He had also been convicted of felony domestic assault in-between the two deportations. At his rearraignment on the illegal reentry charge, he agreed with the prosecutor's statement of the factual basis for his guilty plea, which identified only the earlier of the two deportations. The PSR of course listed both of them, and hit Velasquez with an 8-level bump for the assault conviction. That also elevated the statutory maximum from the 2 years allowed under § 1326(a) to the 20 years authorized under § 1326(b)(2).

At his sentencing, Velasquez-Torrez affirmed that he had received and read the PSR. Through counsel, Velasquez-Torrez stated that there were no mistakes in the report, although he “remained silent on Paragraph 28,” which contained a narrative discussing the facts of his prior assault conviction.

Velasquez got 37 months, and appealed. He argued that his sentence could not exceed 2 years because the 2008 deportation was not proved beyond a reasonable doubt, just like in Rojas-Luna, where the defendant prevailed on this issue. And also like Rojas-Luna, Velasquez faced plain-error review. But unlike Rojas-Luna, Velasquez could not show plain error. Why the difference?

In Rojas-Luna, the defendant pleaded guilty to reentering the United States illegally. The factual basis for the charge was that Rojas-Luna had been deported in 1988 and had reentered the United States in 2006. No mention was made of a prior conviction. The subsequent PSR, however, noted that Rojas-Luna was convicted of aggravated assault in 2003 and was removed in 2006. Because Rojas-Luna had been convicted and subsequently removed, the district court enhanced his sentence under § 1326(b)(2). On appeal, we held that the district court’s reliance on the 2006 removal, when this fact had not been proven to a jury or admitted by Rojas-Luna, was plain error.

In Ramirez, we dealt with facts that differed slightly, but materially, and came to a different conclusion. Ramirez pleaded guilty to illegal reentry at his rearraignment. The indictment and factual basis for his plea did not specify the date of his removal. After his plea, the PSR reflected that Ramirez had been convicted of aggravated assault in 2003 and deported in 2005. Relying on the conviction and deportation mentioned in the PSR, the district court increased Ramirez’s sentence beyond the statutory maximum contained in § 1326(a). On appeal, Ramirez argued that the district court’s reliance on the 2005 removal was plain error under Rojas-Luna. We disagreed. We noted that, whereas in Rojas-Luna the defendant had not admitted to the relevant deportation, Ramirez and his counsel “affirmed specifically that they had read the PSR, reviewed it for legal and factual accuracy, and made no objections to it.” While reliance on a PSR alone to establish the fact of a defendant’s removal is improper, “reliance on a defendant’s admission of facts that are contained in the PSR is permissible.” Because Ramirez implicitly admitted the accuracy of the PSR, the district court did not plainly err in relying on the facts contained therein.

In this case, the district court relied on Velasquez-Torrez’s 2008 deportation to increase his sentence beyond the statutory maximum. While Velasquez-Torrez’s 2008 deportation was not proven to a jury, it was described in the PSR. At his sentencing, Velasquez-Torrez stated that he had received and read the PSR. Beyond “remaining silent” on a section of the PSR discussing the facts of his prior assault conviction, Velasquez-Torrez through counsel affirmed that the PSR contained no mistakes. Just as in Ramirez, Velasquez-Torrez agreed to the accuracy of the PSR. Having admitted the fact of his deportation, Velasquez-Torrez cannot now argue that the district court improperly relied on that deportation. Therefore, the district court did not commit error, much less plain error, when it enhanced Velasquez-Torrez’s sentence pursuant to § 1326(b)(2).

Now there's actually a little more to Ramirez than the implicit admission of the PSR's accuracy. In Ramirez,

[T]he PSR incorporated ICE records provided to the probation office by the government and set forth the details of Ramirez's three prior removals in 1998, 2002, and 2005. The ICE records were provided to Ramirez by the government. In addition, Ramirez and his counsel affirmed specifically that they had read the PSR, reviewed it for legal and factual accuracy, and made no objections to it.

Distinguishing that scenario from Rojas-Luna, Ramirez said,

In Rojas-Luna, this court reached the conclusion that there was plain error because “there is no evidence in the record that Rojas-Luna ever agreed to the accuracy of the PSR.” In addition the panel noted that the only evidence of the defendant’s prior removal was the unsupported statement in the PSR that he was removed in 2006. In this case, in contrast, there is evidence that Ramirez agreed to the accuracy of the PSR and the facts of Ramirez’s prior removals in the PSR were based on ICE documentation of Ramirez’s prior deportations, which documents were provided to the defendant.

So what to take away from all this? Be very careful about conceding the accuracy of the PSR, even implicitly. Because even if Ramirez rested on more than an implicit admission—and putting aside the question whether Ramirez's and his counsel's statements regarding the PSR really amounted to an admission, implicit or otherwise—the court appears to read the case as if the admission alone was enough to defeat plain error review.