United States v. Ordunez

1

United States of America, Plaintiff-Appellee, v. Ernesto Ordunez, Defendant-Appellant.

No. 21-50869

United States Court of Appeals, Fifth Circuit

June 14, 2023

Appeal from the United States District Court for the Western District of Texas USDC No. 7:20-CR-129-1

Before HO, OLDHAM, and DOUGLAS, Circuit Judges.

PER CURIAM ^[*]

Ernesto Ordunez was indicted in July of 2020 for one count of conspiracy to possess with intent to distribute five or more grams of methamphetamine. At sentencing, the district court determined that Ordunez qualified as a career offender under U.S.S.G. § 4B1.1. Ordunez now challenges that determination, pointing to three prior convictions: (1) a 1998 federal conviction for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841; (2) a 2008 conviction in state court of attempted child abuse resulting in great bodily harm in violation of New Mexico Statutes § 30-6-1(D); and (3) a 2008 conviction in state court for three counts of aggravated assault with a deadly weapon in violation of New Mexico Statutes § 30-3-2(A). He argues that none of these prior convictions qualify as crimes of violence or controlled substance offenses for purposes of § 4B1.1. We have jurisdiction pursuant to 18 U.S.C § 3742 and 28 U.S.C. § 1291. For the reasons provided herein, we AFFIRM the district court's application of the career offender enhancement.

I. STANDARD OF REVIEW

Though the parties dispute the applicable standard of review, plain error applies throughout. Ordunez failed to object to the district court's categorization of his 1998 marijuana conviction as a controlled substance offense, instead arguing it was too old to qualify for an enhancement. See United States v. Huerra, 884 F.3d 511, 519 (5th Cir. 2018) ("[W]e subject to plain-error review arguments that are raised for the first time on appeal.").

Regarding the two remaining qualifying offenses - aggravated assault with a deadly weapon and attempted child abuse resulting in great bodily harm - Ordunez argues this court should apply de novo review. In his written objections to the PSR, he stated in full that he "objects to the classification of the felonies in paragraph 19(B) [attempted child abuse] and 19(C) [aggravated assault]" because "these felonies should not be classified as violent felonies."

"To preserve an issue for appeal, the objection below 'must fully apprise the trial judge of the grounds for the objection so that evidence can be taken and argument received on the issue.'" Huerra, 884 F.3d at 519 (quoting United States v. Musa, 45 F.3d 922, 924 n.5 (5th Cir. 1995)). "There is no bright-line rule for determining whether a matter was raised below." United States v. Soza, 874 F.3d 884, 889 (5th Cir. 2017) (cleaned up). "If a party wishes to preserve an argument for appeal, the party must press and not merely intimate the arguments during the proceedings before the district court." Id. (cleaned up). The objection must be "sufficiently specific to alert the district court to the nature of the alleged error and provide an opportunity for correction." United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).

Although Ordunez objected to the characterization of his remaining qualifying offenses as crimes of violence, he provided no reasons for this objection. The probation officer responded to Ordunez's objection by stating that he "did not provide any reasons as to why the convictions should not be considered crimes of violence." At sentencing, Ordunez's counsel appeared to argue that the objection related to whether the underlying offenses were aggravated, but that they were unable to obtain the documents to make their argument.^[1] The district court stated that it agreed with the probation officer's response and overruled Ordunez's objections.

Because the objection was not sufficiently clear to alert the district court to the alleged error, this court reviews for plain error. To demonstrate plain error, a defendant has the burden of showing (1) an error, (2) that is clear or obvious, and (3) that affects the defendant's substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If satisfied, this court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

II. DISCUSSION

The career offender enhancement is applied when "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." § 4B1.1(a). Because the district court found that Ordunez had committed three such offenses, he must show that two of the three prior convictions were not either controlled substance offenses or crimes of violence to demonstrate that the career offender enhancement was improperly applied. See id.

The term "controlled substance offense" is defined, in relevant part, as "an offense under federal ... law, punishable by imprisonment for a term exceeding one year, that prohibits . the possession of a controlled substance (or a counterfeit substance) with intent to . distribute[.]" U.S.S.G. § 4B1.2(b). A crime of violence is a crime punishable by more than a year under federal or state law that has as an element the use, attempted use, or threatened use of physical force against the person of another ("elements clause") or is otherwise included in an enumerated category. U.S.S.G. § 4B1.2(a).

To determine whether a prior conviction constitutes such an offense, this court uses the categorical approach, "look[ing] only to the elements of the prior offense, not to the actual conduct of the defendant in committing the offense." United States v. Hinkle, 832 F.3d 569, 572 (5th Cir. 2016). Under the categorical approach, courts "must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense." Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (cleaned up). Further, the defendant "must also show a realistic probability that [the Government] will prosecute the conduct that falls outside the generic definition of a crime." Alexis v. Barr, 960 F.3d 722, 726 (5th Cir. 2020) (cleaned up).

A. 1998 Federal Marijuana Conviction

Ordunez argues that his marijuana conviction should no longer be considered a controlled substance offense because the federal definition of "marihuana" was modified in 2018 to exclude hemp. When Ordunez was convicted of the crime, 21 U.S.C. § 802 defined "marihuana" to mean "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant, its seeds or resin." § 802(16) (effective Oct. 11, 1996). In 2018, the statute was amended to exclude hemp from the definition of "marihuana." § 802(16)(B)(i) (effective Dec. 21, 2018).

This court has never held that a pre-2018 predicate conviction does not qualify as a controlled substance offense for purposes of the Sentencing Guidelines because hemp was subsequently removed from the CSA prior to the time of federal sentencing. See, e.g., United States v. Rodriguez, No. 2150680, 2022 WL 1615333 (5th Cir. May 23, 2022); United States v. Belducea-Mancinas, No. 20-50929, 2022 WL 1223800 (5th Cir. Apr. 26, 2022); United States v. Nava, No. 21-50165, 2021 WL 5095976 (5th Cir. Nov. 2, 2021). "An error is not plain unless the error is clear under current law." United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010). Because this question remains an open one in this circuit, Ordunez cannot show the district court committed plain error.

B. 2008 New Mexico Attempted Child Abuse Conviction

Ordunez raises two arguments to suggest his attempted child abuse conviction should not count as a crime of violence: (1) it does "not have as an element the purposeful or knowing use, attempted use, or threatened use of force against the person of another," and (2) a defendant could be convicted of New Mexico child abuse with a mens rea of recklessness. He pleaded guilty to "Attempt to Commit a Felony, to wit: Child Abuse -Intentional (Resulting in Great Bodily Harm)" on March 13, 2008.

Regarding his force argument, Ordunez contends that the recent decision in United States v. Taylor, 142 S.Ct. 2015 (2022), in which the Supreme Court held that attempted Hobbs Act robbery did not qualify as a "crime of violence" under 18 U.S.C. § 924(c)(3) because a conviction under that statute does not "require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property[,]" 142 S.Ct. at 2020, applies to his conviction for New Mexico attempted child abuse. In Taylor, the Supreme Court reasoned that "attempted Hobbs Act robbery [requires] two things: (1) the defendant intended to unlawfully take or obtain personal property by means of actual or threatened force, and (2) he completed a 'substantial step' toward that end." 142 S.Ct. at 2020 (emphasis in original). The Taylor court cited United States v. Resendiz-Ponce, 549 U.S. 102, 106 (2007), for the proposition that an attempt crime requires a "substantial step" towards completion. Id. Likewise, New Mexico law "requires the accused to take a substantial step" for attempt crimes. State v. Telles, 446 P.3d 1194, 1204 (N.M. 2019) (attempted tampering with evidence).

The Supreme Court explained that a defendant could hypothetically, take a substantial step towards completing a Hobbs Act robbery without using, attempting to use, or threatening to use force. Taylor, 142 S.Ct. at 2021. Ordunez argues that Taylor applies here. He argues that, by using the same logic, a defendant could plan to commit child abuse and buy weapons intended for that abuse but...