Appeal from the United States District Court for the Western District of Texas.
Before PRADO, ELROD, and GRAVES, Circuit Judges.
EDWARD C. PRADO,
Defendant-Appellant Alfonso Rodriguez-Rodriguez (Rodriguez) pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. Rodriguez had previously been convicted of stalking in violation of Texas Penal Code § 42.072. In Rodriguez's presentencing report (PSR), the probation officer recommended a sixteen-level enhancement to Rodriguez's offense level for a " crime of violence" (COV) under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)(ii) based on the Texas stalking conviction. The PSR calculated Rodriguez's total offense level at twenty-one, following a three-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The Guidelines suggested a range of imprisonment of fifty-seven to seventy-one months.
At sentencing, Rodriguez objected to the sixteen-level sentencing enhancement. Rodriguez argued that his conviction under the Texas stalking statute was not a COV because the statute did not have as a necessary element the use or threatened use of physical force. The proper Guidelines range, he proposed, was fifteen to twenty-one months. The district court agreed that this range would be correct without the sixteen-level enhancement.
After a colloquy with counsel, the district court determined that Rodriguez's stalking conviction, as defined by the language of the indictment, was for a COV under United States v. Mohr, 554 F.3d 604 (5th Cir. 2009), and United States v. Rivas, 455 F.App'x 531 (5th Cir. 2011) (per curiam). After overruling Rodriguez's objection to the PSR's Guidelines calculation, the district court found the Guidelines range " fair and reasonable."
The court went on to say Rodriguez's sentence " would be the same . . . . no matter what system we use, guidelines/non-guidelines." Providing the rationale for this conclusion, the court stated:
You engage--and I'm not taking about convictions and I'm not talk--taking uncharged conduct in terms of the commission of a crime per se into account. But you've engaged in a lot of reckless conduct over the course of your life that can be construed as assaultive. You're an aggressive person. And you were lucky that you were not charged with the assault with a knife, wherein it was alleged that you were chasing another person with a vehicle--I mean
with a knife. Excuse me. That was in '03 and '07.
Once again, there was an allegation that you assaulted somebody, especially when you get drunk and you threaten to shoot that person.
In '07 you were involved in--I should take that back. You--it's alleged that you were involved in a hit and run with an accident. And I did notice from the convictions there is one of those such convictions. In '08 it was, again, alleged that you did the same thing; in June 26th of '08.
In June 29th of '08 it was alleged that you engaged in [a] terroristic threat, where you threatened to kill a person.
Given that you were charged and convicted of stalking and threatening somebody, you have a very aggressive and assaultive type of personality. And part of it is probably because of your alcohol use. I understand that. And the reason I say that is you've got--you have several DWI convictions, one which did not count, the Nashville, Tennessee one.
There's--in Paragraph 30 we have the accident involving damage to a vehicle, and then in the unclear--the fineable type of offenses only that didn't count, you have public intoxication, possession of alcohol, and another possible intoxication. Which tells me that alcohol may be an issue for you. You get violent when you drink.
. . . [T]he sentence I'm about to impose would be the same with or without [the G]uidelines. Although the Court is finding ...