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United States v. Sanchez-Hernandez

United States Court of Appeals, Fifth Circuit

June 19, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
AGUSTINE SANCHEZ-HERNANDEZ, also known as Augustin Sanchez, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Texas

          Before JONES, HO, and OLDHAM, Circuit Judges.

          ANDREW S.OLDHAM, Circuit Judge:

         Agustine Sanchez-Hernandez argues the district court plainly erred in calculating his Guidelines range at sentencing. That calculation was based on treating his prior state court convictions-for exposing himself to and sexually assaulting a fourteen-year-old girl-as crimes of violence. We affirm.

         I.

         On October 17, 2017, Sanchez-Hernandez illegally entered the United States for the third time. When officers approached him, Sanchez-Hernandez admitted he had recently waded across the Rio Grande river. So the federal government charged him with illegally reentering the country after having been previously removed. 8 U.S.C. § 1326(a)-(b). Sanchez-Hernandez pleaded guilty on December 6, 2017.

         Prior to the scheduled sentencing hearing, the probation office prepared a Presentence Report ("PSR"). It assigned an offense level of 17 and a criminal history category of IV, which yielded a Guidelines range of 37 to 46 months in prison.[1] Those calculations were based in part on Sanchez-Hernandez's prior criminal history.

         First, in 2010, he pleaded guilty to indecency with a child. Tex. Penal Code § 21.11. After dancing with a fourteen-year-old girl at a banquet hall, Sanchez-Hernandez took her outside, began kissing her, unzipped his pants, exposed himself, grabbed the girl's hands, and put them on his penis.

         Second, also in 2010, a Texas jury convicted Sanchez-Hernandez of sexually assaulting a child based on the same incident. Id. § 22.011. After forcing the girl to touch him, Sanchez-Hernandez put his penis in the girl's mouth. The state court sentenced him to concurrent two-year sentences for both offenses and required him to register as a sex offender. Upon his release in 2012, the federal government removed him to Mexico.

         Third, in 2014, Sanchez-Hernandez pleaded guilty to illegal reentry. 8 U.S.C. § 1326(a)-(b). Just one month after the government removed him to Mexico, Sanchez-Hernandez rafted across the Rio Grande back into Texas. The federal court sentenced him to 41 months in prison.

         The PSR determined these offenses warranted 7 criminal history points. It assigned 3 points for the indecency offense and 3 points for the illegal reentry offense under § 4A1.1. Then the PSR added 1 additional criminal history point under § 4A1.2(a)(2) and § 4A1.1(e) because it treated the two sex offenses as "crimes of violence." The addition of that 1 point bumped Sanchez-Hernandez from criminal history category III to category IV.

         At sentencing on February 21, 2018, the court began by asking Sanchez-Hernandez if he had been given "a chance to review [the PSR] with [his] lawyer." Sanchez-Hernandez agreed he had. And he had just one correction: He had been arrested by local police officers, not federal Customs and Border Patrol officers, as the PSR indicated. But that was all:

THE COURT: Was everything else correct?
DEFENDANT SANCHEZ-HERNANDEZ: Yes. ...

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