United States v. Gomez-Alvarez, No. 14-40059 (5th Cir. 2015)
Annotate this CaseElmer Gomez-Alvarez pled guilty to illegal reentry without a written plea agreement. His pre-sentence report ("PSR"), which relied on the 2013 version of the Sentencing Guidelines Manual, recommended a 16-level sentencing enhancement for a prior "drug trafficking offense" conviction. The PSR listed "Jorge Ortiz" as one of several aliases used by Gomez-Alvarez and indicated that Gomez-Alvarez had been convicted of the offense in California "using the name Jorge Ortiz." Attached to the PSR was a California felony complaint. Also attached to the PSR was an abstract of judgment indicating that Jorge Ortiz pled guilty to "possession for sale of [a] controlled substance" but did not specify the substance. Application of the sentencing enhancement based on the California offense resulted in a total offense level of 22 and a criminal history category of V, which produced a guideline range for imprisonment of 77 to 96 months. Gomez-Alvarez raised several written objections to the PSR. Relevant to this appeal, he objected to the 16-level enhancement on grounds that the documents relied upon by the government failed to establish the fact of a qualifying predicate conviction. He argued that the language of the California statue was overbroad, and that although "the charging instrument [the Complaint] allege[d] . . . possession and purchase of heroin," the Abstract did not specify a controlled substance. Finally, Gomez-Alvarez raised the following one-sentence written objection: "Further, it has not been established with credible documentation that the person purportedly convicted was, in fact, Mr. Gomez-Alvarez." Gomez-Alvarez then argued in favor of a below-guideline-range sentence on grounds that his criminal history was over-represented. The district court agreed and concluded that criminal history category IV more accurately represented Gomez-Alvarez's criminal history. As a result, Gomez-Alvarez's The district court sentenced Gomez-Alvarez to 57 months of imprisonment and did not impose a term of supervised release. Gomez-Alvarez timely appealed. After careful consideration, the Fifth Circuit concluded there was no clear error in the sentencing court's judgment, and that the lower court's findings were plausible in light of the record as a whole. As such, the Fifth Circuit affirmed Gomez-Alvarez's sentence.
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