United States v. Blanco

27 F.4th 375

UNITED STATES of America, Plaintiff—Appellee,

v.Hector Fernando BLANCO, Defendant—Appellant.

No. 21-40307

United States Court of Appeals, Fifth Circuit.

FILED March 8, 2022

Lauretta Drake Bahry, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff—Appellee.

Marjorie A. Meyers, Federal Public Defender, Kathryn Shephard, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant—Appellant.

Before Owen, Chief Judge, and Higginbotham and Elrod, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Hector Fernando Blanco was charged with forcibly and intentionally assaulting his then-girlfriend, Morgan Greer, on a Royal Caribbean cruise ship that departed from Galveston, Texas. Blanco subsequently pleaded guilty. Based on his presentence report (PSR), which included a three-level "bodily injury" enhancement and 3 additional criminal history points for a previous conviction, the district court sentenced Blanco to 36 months of imprisonment and 2 years of supervised release. Blanco objected to the bodily injury enhancement and now appeals both the enhancement and the criminal history points that factored into his PSR. Because the district court erred in assessing 3 criminal history points for a stale 2002 conviction, which affected Blanco's substantial rights, we VACATE his sentence and REMAND for resentencing. We AFFIRM the district court's application of the bodily injury enhancement.

I.

On November 18, 2018, Blanco intentionally assaulted Greer in a cabin the pair shared aboard the Royal Caribbean cruise ship "Liberty of the Seas," while in international waters approximately 45 miles from Galveston, Texas. Blanco and Greer were dating at the time of the assault. At approximately 2:00 a.m. on November 18, Blanco entered the cruise ship cabin highly intoxicated while Greer was asleep. Blanco searched through Greer's cellphone and confronted her about various pictures and text messages that she allegedly sent to her ex-husband.

The confrontation escalated when Blanco put his hands over Greer's mouth, grabbed a bath towel, and told Greer she was going to die or be thrown overboard. Blanco subsequently twisted the bath towel, wrapped it around Greer's neck and began to choke her. Blanco then dragged Greer by the neck on the floor toward the balcony, threatening to throw her overboard. Fearing that she would be strangled, knocked unconscious, or thrown overboard, Greer bit Blanco's hand in an effort to escape.

Greer ultimately escaped and reported the assault to ship personnel. Greer asked to see the ship's doctor and was initially seen by an intake nurse who documented that Greer experienced pain in her neck, but had no bruises, visible marks, or wounds. The ship's doctor also noted that there were no signs of physical abuse but prescribed pain medication and strongly advised Greer to see her home physician at the end of the cruise. The ship's security office began an investigation, which was completed by the Federal Bureau of Investigation once the ship arrived back in Galveston, Texas. FBI Agent Laura Brunstetter interviewed Greer when the ship docked in Galveston—eight hours after the assault—and saw bruising on Greer's neck, chin, the sides of her face, as well as red marks on her scalp. The FBI also gathered physical evidence, including a towel that contained human hair with the root still attached—which was confirmed to belong to Greer.

Blanco was charged and pleaded guilty to one count of "forcibly and intentionally assault[ing] Morgan Greer, who was then [his] dating and intimate partner, by attempting to strangle and suffocate her with his hands and a bath towel," while "within the special maritime and territorial jurisdiction of the United States and within the jurisdiction of the [c]ourt," in violation of 18 U.S.C. §§ 7, 113(a)(8), 3238.

The district court ordered and adopted the probation officer's PSR based on the 2018 version of the Sentencing Guidelines, which calculated an offense level of 17. This calculation included a base offense level of 14, a three-level enhancement for strangling or attempted strangling of an intimate partner, a three-level enhancement for bodily injury sustained by Greer, and a three-level reduction for acceptance of responsibility. The PSR also calculated Blanco's criminal history at a category V based on several previous convictions, including a 2002 conviction for operating a motor vehicle after a lifetime forfeiture of his driver's license. Based on the PSR calculations, Blanco faced a Guidelines range of 46–57 months of imprisonment.

Blanco objected to the bodily injury enhancement, arguing that the evidence was insufficient to show that Greer suffered bodily injury as defined by the Guidelines. In support of his objections, Blanco submitted the report of the medical examination that took place just after the assault and photographs taken both before and after the assault. The Government filed a response asserting that forthcoming sentencing testimony from Greer and Agent Brunstetter would establish that Greer suffered bodily injury that was painful and obvious as a result of the assault.

At sentencing, the district court considered arguments from counsel related to Blanco's objection and the testimony from Greer and Agent Brunstetter. Overruling Blanco's objection, the district court acknowledged the Guidelines range of 46–57 months of imprisonment, granted Blanco's request for a downward variance, and imposed a below-Guidelines sentence of 36 months of imprisonment and 2 years of supervised release. Blanco timely appealed.

II.

For the first time on appeal, Blanco challenges the PSR calculation for his criminal history category that was adopted by the district court. He argues that the district court erred in assessing three criminal history points for a stale 2002 conviction, thereby affecting his substantial rights because the district court used a higher imprisonment range as a starting point. We agree.

Blanco contends that—based on this Court's precedent and the plain language of the criminal history calculations in the Guidelines—his 2002 sentence was too old to receive criminal history points. Blanco claims that the sentence imposed on his 2002 conviction for operating a motor vehicle after forfeiture of his driver's license for life did not total more than 13 months and was originally imposed more than 10 years before the commencement of the assault. He further argues that this improper assessment affected his substantial rights and the fairness of his judicial proceedings because the district court incorrectly used a higher Guidelines range as a starting point to apply its downward variance.

The government concedes that the district court committed clear error in assigning three criminal history points for Blanco's 2002 conviction. However, the government contends that the error did not affect Blanco's substantial rights because the district court's sentencing decision was based on factors independent of the Guidelines. We agree with Blanco.

Because Blanco did not raise this objection in district court, we review this issue for plain error. United States v. Johnson , 943 F.3d 735, 737 (5th Cir. 2019). To prevail, Blanco "must show a forfeited error that is clear or obvious and that affects his substantial rights." Id. Even if Blanco makes the requisite showing, we may exercise our discretion to correct the error "only if it seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted).

The Sentencing Guidelines direct district courts to calculate a defendant's criminal history score in part by assessing points for each of the defendant's prior sentences of imprisonment. U.S.S.G. § 4A1.1. Three criminal history points are added for each sentence of imprisonment exceeding one year and one month. Id. § 4A1.1(a). Further, to qualify as a sentence of imprisonment, the defendant must actually serve a period of imprisonment. Id. § 4A1.2, cmt. 2.

Blanco was assigned three criminal history points for a 2002 conviction for operating a motor vehicle after a lifetime forfeiture of his driver's license. This conviction resulted in a four-year prison term, but two years were suspended to at home confinement and two years were probated. Blanco's probation was ultimately revoked, and he was sentenced to a one-year prison term.¹

Because Blanco's original sentence was probated, the term of imprisonment used to calculate his criminal history points should have been the one-year term after revocation of his probation. See Id. § 4A1.2(k)(1) & cmt. 11; see also United States v. Rodriguez-Parra , 581 F.3d 227, 229–30 (5th Cir. 2009) (noting that the suspended part of a sentence is not part of the sentence of imprisonment). Blanco's PSR also indicates that the sentence for his 2002 conviction was originally imposed more than ten years prior to the assault of Greer.

When "a straightforward application of the [G]uidelines" reveals the error in applying a defendant's criminal history points, the error was clear and obvious. United States v. Torres , 856 F.3d 1095, 1099 (5th Cir. 2017). Thus, Blanco should not have been assessed any points for the 2002 conviction because he did not receive a term of imprisonment that exceeded one year and one month and his sentence was imposed over ten years before the assault. See U.S.S.G. § 4A1.2(e) ; see also United States v. Arviso-Mata , 442 F.3d 382, 385 (5th Cir. 2006) (explaining that if criminal history points are to be assessed for a term of imprisonment less than one year and one month, the term must have been imposed within ten years of the instant offense); U.S.S.G. § 4A1.2(k)(2)(C) (explaining that when a new term of imprisonment is imposed following revocation of probation and the total term is less than one year and one month, the date of the original...