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10-1400United States Court of Appeals
FOR THE SECOND CIRCUIT
Docket No. 10-1400
UNITED STATES OF AMERICA,Appellee,
—v.—
RAUL REYES, also known as Raoul Reyes, also known as RicoReyes, also known as Paul Reyes, also known as Raul VasquezReyes, also known as Rauli Reyes, also known as Jaime Colon,also known as Jaime Rodriguez,
Defendant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR THE UNITED STATES OF AMERICA
PREET BHARARA,United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.
To Be Argued By:JENNIFER E. BURNS
JENNIFER E. BURNS, JUSTIN ANDERSON,
Assistant United States Attorneys,
Of Counsel.
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TABLE OF CONTENTS
PAGE
Preliminary Statement. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Offense Conduct. . . . . . . . . . . . . . . . . . . . . . 2
B. The Indictment and the Guilty Plea. . . . . . . . . . . 3
C. The Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. The Presentence Report. . . . . . . . . . . . . . . . . 4
2. The Sentencing Submission. . . . . . . . . . . . . . 5
3. The Sentencing Proceeding.. . . . . . . . . . . . . . 6
D. The Court’s August 2, 2011 Order. . . . . . . . . . . . 8
ARGUMENT:
Reyes Was Properly Sentenced. . . . . . . . . . . . . . . . . . . 9
A. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Discussion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1. By Not Objecting, Reyes Admitted the
Facts Set Forth in the Presentence Report. . 16
2. Reyes’s Admission Provides an
Adequate Basis for His Career Offender
Designation. . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. The District Court’s Career-Offender
Finding Cannot Be Plain Error. . . . . . . . . . . 21
CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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PAGE
TABLE OF AUTHORITIES
Cases:
Johnson v. United States,
130 S. Ct. 1265 (2010). . . . . . . . . . . . . . . . 10, 12, 19
Johnson v. United States,
520 U.S. 461 (1997).. . . . . . . . . . . . . . . . . . . . . . . 15
Shepard v. United States,
544 U.S. 13 (2005).. . . . . . . . . . . . . . . . . . . . . 11, 20
Taylor v. United States,
495 U.S. 575 (1990).. . . . . . . . . . . . . . . . . . . . 11, 12
United States v. Aviles-Solarzano,
623 F.3d 470 (7th Cir. 2010). . . . . 13, 14, 17, 19, 20
United States v. Chauncey,
420 F.3d 864 (8th Cir. 2005). . . . . . . . . . . . . . 13, 19
United States v. Cullen,
432 F.3d 903 (8th Cir. 2006). . . . . . . . . . . . . . . . . 13
United States v. Davila,
461 F.3d 298 (2d Cir. 2006).. . . . . . . . . . . . . . . . . 22
United States v. Fagans,
406 F.3d 138 (2d Cir. 2005).. . . . . . . . . . . . . . . . . 16
United States v. Gamez,
577 F.3d 394 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 22
United States v. Marcus,
130 S. Ct. 2159 (2010). . . . . . . . . . . . . . . . . . . . . . 15
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PAGE
United States v. Parnell,
524 F.3d 166 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 11
United States v. Rizzo,
349 F.3d 94 (2d Cir. 2003).. . . . . . . . . . . . . . . . . . 16
United States v. Rogers,
972 F.2d 489 (2d Cir. 1992).. . . . . . . . . . . . . . . . . 10
United States v. Rosa,
507 F.3d 142 (2d Cir. 2007).. . . . . . . . 12, 13, 19, 22
United States v. Savage,
542 F.3d 959 (2d Cir. 2008).. . . . . . . . . . . . . . . . . 12
United States v. Siegel,
477 F.3d 87 (3d Cir. 2007).. . . . . . . . . . . . 13, 19, 20
United States v. Stewart,
433 F.3d 273 (2d Cir. 2006).. . . . . . . . . . . . . . . . . 21
United States v. Streich,
987 F.2d 104 (2d Cir. 1993).. . . . . . . . . . . . . . 16, 17
United States v. Thompson,
421 F.3d 278 (4th Cir. 2005). . . . . . . . . . . . . . 13, 14
United States v. Villafuerte,
502 F.3d 204 (2d Cir. 2007).. . . . . . . . . . . . . . 14, 15
United States v. Wade,
458 F.3d 1273 (11th Cir. 2006). . . . . . . . . . . . 13, 19
Williams v. United States,
130 S. Ct. 1734 (2010). . . . . . . . . . . . . . . . . . . . . . 10
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PAGE
Statutes, Rules & Other Authorities:
Fla. Stat. § 784.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fla. Stat. § 812.13. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fed. R. Crim. P. 32(i)(3)(A). . . . . . . . . . . . . . . . . . . . 16
U.S.S.G. § 4B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
U.S.S.G. § 4B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
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FOR THE SECOND CIRCUIT
Docket No. 10-1400
UNITED STATES OF AMERICA,
Appellee,
-v.-
RAUL REYES, also known as Raoul Reyes, also known as
Rico Reyes, also known as Paul Reyes, also known as
Raul Vasquez Reyes, also known as Rauli Reyes, also
known as Jaime Colon, also known as Jaime Rodriguez,
Defendant-Appellant.
BRIEF FOR THE UNITED STATES OF AMERICA
Preliminary Statement
Raul Reyes appeals from a judgment of conviction
entered on April 12, 2010, in the United States District
Court for the Southern District of New York, by the
Honorable Loretta A. Preska, Chief United States District
Judge, following Reyes’s plea of guilty.
Indictment 08 Cr. 983 (LAP) (the “Indictment”), filed
on October 10, 2008, charged Reyes with one count of
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bank robbery, in violation of Title 18, United States Code,
Section 2113(a) and (d).
On January 27, 2010, Reyes pleaded guilty, without a
plea agreement, to the charge set forth in the Indictment.
On April 7, 2010, Chief Judge Preska sentenced Reyes
principally to a term of 188 months’ imprisonment.
Reyes is currently serving his sentence.
Statement of Facts
A. The Offense Conduct
On July 28, 2008, Reyes robbed a branch of JP Morgan
Chase Bank in New York, New York. (PSR ¶ 25). Reyes*
handed an empty gym bag to a teller, stated that he had an
explosive device, and demanded money. (PSR ¶ 25).
Another bank employee complied with Reyes’s demand,
filling the gym bag with $14,000. (PSR ¶¶ 26, 28). Before
leaving the bank, Reyes attempted to take the teller with
him, apparently to hold as a hostage. (PSR ¶ 26). On or
about May 21, 2009, Reyes was arrested by law enforce-
ment authorities in Puerto Rico and later transferred to
New York to face prosecution for this offense. (PSR ¶ 31).
“PSR” or “Presentence Report” refers to the*
Presentence Investigation Report prepared by the United
States Probation Office (the “Probation Office”) in
connection with Reyes’s sentencing; “Br.” refers to
Reyes’s brief on appeal; and “A.” refers to the appendix
filed with Reyes’s brief on appeal.
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B. The Indictment and the Guilty Plea
The Indictment was filed on October 10, 2008, charg-
ing Reyes with one count of bank robbery, in violation of
Title 18, United States Code, Section 2113(a) and (d).
On October 26, 2009, the Government provided Reyes
with a letter, pursuant to this Court’s suggestion in United
States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991),
setting forth the Government’s view of the application of
the United States Sentencing Guidelines (“U.S.S.G.” or
the “Guidelines”) to Reyes’s case (the “Pimentel letter”).
(A. 25-30). In the Pimentel letter, the Government calcu-
lated Reyes’s offense level to be 31. (A. 27). This calcula-
tion was based on the Government’s determination that
Reyes was a career offender under Section 4B1.1(a) of the
Guidelines and the Government’s expectation that Reyes
would receive a three-level downward adjustment, pursu-
ant to U.S.S.G. § 3E1.1, for acceptance of responsibility.
(A. 27). The Pimentel letter further advised Reyes that, in
light of his status as a career offender, his Criminal
History Category would be VI pursuant to U.S.S.G.
§ 4B1.1 (b). (A. 30). The Pimentel letter concluded that,
with a total offense level of 31 and a Criminal History
Category of VI, Reyes’s advisory Guidelines range was
188 to 235 months’ imprisonment. (A. 30).
On January 27, 2010, Reyes entered a plea of guilty,
without a plea agreement, to the charge set forth in the
Indictment. During the plea proceeding, the adequacy of
which Reyes does not challenge on appeal, Chief Judge
Preska conducted a thorough allocution that complied in
all respects with Rule 11 of the Federal Rules of Criminal
Procedure. Among other things, Chief Judge Preska
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confirmed that: (1) Reyes was competent to enter a plea of
guilty; (2) he was aware of the charges against him and the
maximum penalties associated with the charges; (3) he
was aware of the constitutional rights he was waiving by
entering such a plea; and (4) a factual basis existed for the
plea. (A. 33-40). During the plea proceeding, Reyes
admitted that he had robbed a bank, using “a threat of
force or violence,” and that, during the robbery, he
“threatened a bank employee with what appear[ed] to be
an explosive device.” (A. 40). At the conclusion of the
proceeding, Chief Judge Preska accepted Reyes’s guilty
plea. (A. 41).
C. The Sentencing
1. The Presentence Report
Following Reyes’s guilty plea, the Probation Office
prepared a Presentence Report that included a Guidelines
calculation identical to that set forth in the Pimentel letter.
(PSR ¶ 120). According to the Presentence Report, Reyes
had 17 prior arrests and convictions, including two felony
convictions for violent crimes, specifically: (1) battery of
a law enforcement officer, in violation of Florida Statutes
Section 784.07, a third-degree felony; and (2) robbery, in
violation of Florida Statutes Section 812.13, a second-
degree felony. (PSR ¶¶ 50-99). With respect to Reyes’s
battery conviction, the Probation Office reported that “[o]n
March 19, 2004, the defendant was detained at Falkenburg
Road Jail when he caused a disturbance in the pod. A
detention deputy responded and spoke with the defendant.
The defendant struck the deputy in the nose with a closed
fist.” (PSR ¶¶ 72-73). In light of these violent-felony
convictions, the Probation Office determined that Reyes
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was a “career offender” pursuant to U.S.S.G. § 4B1.1 and
therefore had a base offense level of 34 pursuant to
U.S.S.G. § 4B1.1(b)(B). (PSR ¶¶ 12, 47). The Probation
Office then reduced Reyes’s offense level by three levels,
pursuant to U.S.S.G. § 3E1.1, to reflect his acceptance of
responsibility. (PSR ¶ 48). Accordingly, Reyes’s total
offense level was calculated to be 31. (PSR ¶ 49).
The Probation Office further determined that, as a
career offender, Reyes’s Criminal History Category was
VI, pursuant to U.S.S.G. § 4B1.1(b). (PSR ¶ 86). That
determination, combined with an offense level of 31,
yielded a Guidelines range of 188 to 235 months’ impris-
onment. (PSR ¶ 120). The Probation Office recommended
a sentence of 200 months’ imprisonment in light of
Reyes’s lengthy, varied, and serious criminal history. (PSR
at 33, Sentencing Recommendation).
2. The Sentencing Submission
By letter dated March 30, 2010, Reyes urged the Court
to impose a sentence at the bottom of the Guidelines range
set forth in the Presentence Report, the accuracy of which
Reyes did not dispute. In support of his argument, Reyes
argued that 188 months’ imprisonment was appropriate
because of his “truly horrific childhood” and the abuse he
suffered as a child. (A. 44). Reyes further requested that
the District Court impose a sentence running concurrent
with the 13-year sentence he was already serving for
crimes committed before and after the instant offense.
(A. 44). Observing that a sentence at the low end of the
applicable Guidelines range would likely exceed the
sentence he was then serving, Reyes argued that the
additional period of incarceration would satisfy the
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“reasonable incremental punishment for the offense.”
(A. 44). Significantly, in his submission, Reyes did not
question the Guidelines calculation in the Presentence
Report, challenge any of the facts in the Presentence
Report, or otherwise object to the contents of the Presen-
tence Report.
The Government did not file a written submission in
advance of Reyes’s sentencing.
3. The Sentencing Proceeding
On April 7, 2010, the parties appeared before the
District Court for sentencing. (A. 46-56). At the outset,
Chief Judge Preska stated that she had reviewed the
Presentence Report and Reyes’s submission, and con-
firmed that Reyes had reviewed the Presentence Report
with his attorney. (A. 47). The District Court then asked
defense counsel whether “there [was] any reason [that the
Presentence Report] should not be made part of the re-
cord.” (A. 47). Defense counsel responded, “No, your
Honor.” (A. 47). When asked whether the defense had any
objections to the Presentence Report, defense counsel
stated, “No objections to the facts or the guideline calcula-
tions, your Honor.” (A. 47). Based on the responses of the
parties and her independent review, Chief Judge Preska
adopted the Guidelines calculation set forth in the Presen-
tence Report. (A. 47-48).
The District Court then heard from the parties. Defense
counsel urged the imposition of a sentence that would run
concurrently with the term of imprisonment that Reyes
was already serving, stressing that, regardless of the
outcome, Reyes would be incarcerated until 2022. (A. 48-
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49). Defense counsel emphasized Reyes’s sexually and
physically abusive upbringing, as well as Reyes’s desire
for rehabilitation, noting his belief that Reyes would “do
better as an inmate if he has hope that there will come a
day when he will be released to the street so that he can try
to put his life back together.” (A. 49). Defense counsel
urged the Court to consider a sentence “no longer than that
at the bottom of the [Guidelines] range” based on the
factors set forth in Title 18, United States Code, Section
3553(a). (A. 49-50). At no point during defense counsel’s
remarks did he challenge, object to, or cast any doubt
whatsoever on any fact set forth in the Presentence Report.
Chief Judge Preska then invited Reyes to address the
Court, but Reyes declined the invitation. (A. 50).
In its remarks, the Government emphasized Reyes’s
“very long and very violent criminal history,” observing
“[h]e’s a career offender because of his multiple crimes of
violence and appears to not have been deterred from
committing these violent crimes despite many separate
terms of imprisonment that he’s served.” (A. 50). The
Government observed:
[I]n 1994 [Reyes] put a man in a coma and
shattered his jaw; in 2001, he committed a
home invasion; in 2003, he committed a
knife[-]point robbery for $80; and in 2004,
he assaulted a corrections officer; and then,
between 2006 and the instant offense, com-
mitted a number of bank robberies with a
very similar pattern as the one that he
pleaded guilty to with the hoax bomb in
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which he effectively terrorized these bank
employees and stole thousands of dollars.
(A. 50-51). In light of Reyes’s egregious criminal history,
the Government requested that the District Court impose
a sentence within the Guidelines range that would be
“sufficient but not greater than necessary to achieve the
legitimate objective of sentencing, especially in light of
Reyes’s violent criminal history.” (A. 51).
The District Court then gave a comprehensive state-
ment of the reasons for the sentence it intended to impose.
(A. 52-53). After referencing the Presentence Report,
Chief Judge Preska discussed the impact of the history and
characteristics of Reyes on the sentencing. (A. 52). She
noted that Reyes had a “very lengthy and violent criminal
history” and the “violence involved has continued over
decades.” (A. 52). Chief Judge Preska also considered
Reyes’s “expressed lack of desire for any kind of counsel-
ing or the like.” (A. 52). Ultimately, Chief Judge Preska
sentenced Reyes to a term of 188 months’ imprisonment,
which she ordered to be followed by three years’ super-
vised release; she also imposed restitution in the amount
of $14,000, and a $100 mandatory special assessment.
(A. 53-54). Chief Judge Preska further ordered the term of
imprisonment to run consecutively to the sentence Reyes
was then serving. (A. 53).
D. The Court’s August 2, 2011 Order
Reyes appealed from his sentence. On April 8, 2011,
the Government moved, with Reyes’s consent, to remand
this matter for resentencing.
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On August 2, 2011, this Court denied the Govern-
ment’s motion and directed the Government to respond to
three questions: (1) whether Reyes’s failure to object to
the facts contained in his Presentence Report describing
the offense conduct underlying his prior conviction for
battery of a law enforcement officer constituted an admis-
sion of those facts; (2) whether a sentencing court may use
such an admission to find that a prior offense constitutes
a “crime of violence” under U.S.S.G. § 4B1.2(a)(1); and
(3) if so, whether the District Court committed plain error
in adopting the Presentence Report’s conclusion the Reyes
qualified as a career offender under U.S.S.G. § 4B1.1(a).
As described in greater detail below, the Government’s
consideration of these questions leads it to conclude that
Reyes’s conviction should be affirmed.
A R G U M E N T
Reyes Was Properly Sentenced
On appeal, Reyes challenges for the first time Chief
Judge Preska’s determination that he is a career offender
under Section 4B1.1 of the Guidelines. Notwithstanding
that neither this determination nor the facts underlying it
were ever questioned in the District Court, Reyes now
maintains that “the record [before the District Court] did
not sufficiently establish that Reyes is a Career Offender.”
(Br. 16). Specifically, Reyes maintains that the crime of*
battery of a law enforcement officer, in violation of
Reyes does not dispute that he made “no objections*
to the facts or the guidelines calculations” before the
District Court. (Br. 16, 17).
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Florida Statutes Section 784.07, is not necessarily a crime
of violence and therefore should not have been used as a
predicate for his career-offender status. See Johnson v.
United States, 130 S. Ct. 1265, 1273 (2010) (addressing
issue in context of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)). Reyes asserts that “there*
is nothing that would have permitted the District Court to
conclude that Reyes’[s] conviction for [b]attery . . . rested
on anything more than mere intentional touching” rather
than violent force. (Br. 21). Reyes is wrong. By not
objecting to the description of the battery set forth in the
Presentence Report — including the fact that he struck a
law enforcement officer in the face with a closed fist —
Reyes admitted the accuracy of those facts, and the
District Court was permitted to rely on them when deter-
mining that Reyes’s battery conviction constituted a crime
of violence under Section 4B1.1 of the Guidelines.
A. Applicable Law
Sections 4B1.1 and 4B1.2 of the Guidelines implement
the “Congressional directive that career offenders be
sentenced at or near the statutory maximum.” United
States v. Rogers, 972 F.2d 489, 494 (2d Cir. 1992) (citing
28 U.S.C. § 994(h)). Pursuant to Section 4B1.1(a), a
defendant is a “career offender,” and therefore subject to
enhanced penalties at sentencing, if (1) he was at least 18
years old at the time of committing the offense for which
Although the Johnson Court viewed the statute in*
the context of ACCA, the Supreme Court has remanded
similar cases under the career offender Guidelines. See,
e.g., Williams v. United States, 130 S. Ct. 1734 (2010).
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he was being sentenced; (2) that offense was “a felony that
is either a crime of violence or a controlled substance
offense,” and (3) the defendant had “at least two prior
felony convictions of either a crime of violence or a
controlled substance offense.” Section 4B1.2(a), in turn,
defines a “crime of violence,” as
any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that . . . (1) has as an
element the use, attempted use, or threat-
ened use of physical force against the per-
son of another, or (2) is burglary of a dwell-
ing, arson, or extortion, involves use of
explosives, or otherwise involves conduct
that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a).
In assessing whether a prior conviction qualifies as a
“crime of violence” under Section 4B1.1, a district court
typically is restricted to reviewing only certain sources. In
most cases, a sentencing court must employ a “categorical
approach” that allows it to “look only to the fact of
conviction and the statutory definition of the prior of-
fense.” Taylor v. United States, 495 U.S. 575, 602 (1990)
(in ACCA context); accord Shepard v. United States, 544
U.S. 13, 17 (2005); see United States v. Parnell, 524 F.3d
166, 169-70 (2d Cir. 2008) (“We have previously relied on
authorities interpreting the ACCA’s definition of a ‘violent
felony,’ see 18 U.S.C. § 924(e)(2)(B), to interpret the
Guidelines’ definition of ‘crime of violence,’ see U.S.S.G.
§ 4B1.2(a) . . . . because those provisions are substantially
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similar, making authority interpreting one phrase persua-
sive in interpreting the other phrase.” (internal quotation
marks and ellipses omitted)).
Where, however, the statutory definition of the prior
offense encompasses both crimes that would meet Section
4B1.2’s definition of “crime of violence” and crimes that
would not, sentencing courts are permitted to engage in a
slightly broader inquiry, called the “modified categorical
approach.” See United States v. Savage, 542 F.3d 959, 964
(2d Cir. 2008) (citing Shepard v. United States, 544 U.S.
at 24). Where the prior conviction followed a guilty plea,
“the inquiry is ‘limited to the terms of the charging
document, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to
some comparable judicial record of this information.’”
United States v. Savage, 542 F.3d at 966 (quoting Shep-
ard, 544 U.S. at 26); see also Johnson v. United States,
130 S. Ct. at 1273 (observing that under the modified
categorical approach, courts may consider materials
“including charging documents, plea agreements, tran-
scripts of plea colloquies, findings of fact and conclusions
of law from a bench trial, and jury instructions and verdict
forms”). The limited nature of this inquiry is designed to
avoid the “practical difficulties and potential unfairness of
a factual approach” that would draw in wide-ranging
sources of information to determine the facts underlying a
conviction. Taylor v. United States, 495 U.S. at 601.
When following the modified categorical approach,
sentencing courts generally are barred from relying on
facts set forth in a presentence report. See United States v.
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Rosa, 507 F.3d 142, 156 (2d Cir. 2007). A narrow excep-
tion to this rule exists where a presentence report describes
the underlying facts of a previous conviction and the
defendant, by failing to object, admits the truth of those
facts. This Court observed in Rosa that two Circuit Courts
of Appeals had adopted this approach, see United States v.
Rosa, 507 F.3d at 156 (citing United States v. Siegel, 477
F.3d 87, 93-94 (3d Cir. 2007); and United States v. Cullen,
432 F.3d 903, 905 (8th Cir. 2006)), but the Court did not
decide whether such a rule should be adopted in this
Circuit because the defendant in Rosa had contested the
relevant facts set forth in the presentence report, see Rosa,
507 F.3d at 156; cf. United States v. Chauncey, 420 F.3d
864, 878 (8th Cir. 2005) (addressing career offender
guidelines). In addition to those identified in Rosa, two
other Courts of Appeals — the Seventh and Eleventh
Circuits — have joined the Third and Eighth Circuits in
recognizing that reliance on a presentence report in this
context is appropriate where the facts are uncontested. See
United States v. Aviles-Solarzano, 623 F.3d 470 (7th Cir.
2010); United States v. Wade, 458 F.3d 1273, 1277 (11th
Cir. 2006). *
The Government is aware of no decision of any*
federal court of appeals rejecting the use of uncontested
facts from a presentence report in this fashion. Indeed, the
Fourth Circuit has adopted a far broader rule, holding that
trial judges are entitled to rely on the facts set forth in a
presentence report “because [the report] bears the ear-
marks of derivation from Shepard-approved sources such
as the indictments and state-court judgments from his prior
convictions.” United States v. Thompson, 421 F.3d 278,
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The Seventh Circuit’s decision is particularly instruc-
tive. Writing for a unanimous panel in United States v.
Aviles-Solarzano, Judge Richard Posner observed that the
defendant, by not objecting to the presentence report’s
description of a prior offense, stipulated to its accuracy.
There was nothing unusual about such a stipulation,
according to the Seventh Circuit, as “[n]othing is more
common than for parties by stipulation formal or informal
to agree to facts that, were it not for the stipulation, would
have to be proved by evidence, in this case a judicial
record.” 623 F.3d at 475. Because the parties had agreed,
in effect, on the nature of the prior offense, there was no
need for the sentencing court to engage in further fact-
finding. As Judge Posner explained, “There is no reason to
go digging for a state-court indictment if the parties agree
on what it says. The judge was entitled to assume that the
parties agreed that the summary of the indictment [con-
tained in the presentence report] was accurate.” Id.
(internal quotation marks omitted).
Where, as here, a sentencing issue is raised for the first
time on appeal, “rigorous plain error review is appropri-
ate.” United States v. Villafuerte, 502 F.3d 204, 208-11
(2d Cir. 2007). To establish plain error, the defendant*
must show (1) an error; (2) that is plain; and (3) that
285 (4th Cir. 2005). The Fourth Circuit also approved of
this use of the presentence report where the defendant
“never raised the slightest objection either to the propriety
of its source material or to its accuracy.” Id.
Reyes concedes that plain error review applies to*
this appeal. (Br. 17).
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15
affects substantial rights; in which case, (4) the Court may
exercise its discretion to notice the error, but only if it
“seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings.” Johnson v. United States,
520 U.S. 461, 466-67 (1997); accord United States v.
Marcus, 130 S. Ct. 2159, 2164 (2010). The Supreme Court
and this Court have cautioned that “reversal for plain error
should ‘be used sparingly, solely in those circumstances in
which a miscarriage of justice would otherwise result.’”
United States v. Villafuerte, 502 F.3d at 209 (quoting
United States v. Frady, 456 U.S. 152, 163 n.14 (1982)).
B. Discussion
The District Court did not commit error — plain or
otherwise — when it sentenced Reyes as a career offender.
It is well established that sentencing courts may accept as
true uncontested statements of fact set forth in presentence
reports. Here, Reyes did not challenge the Presentence
Report’s description of the facts surrounding his 2005
battery conviction, and the District Court was authorized
to rely on those facts when determining whether that prior
offense was a crime of violence under the Guidelines.
Such a determination does not run afoul of this Court’s
precedents and is consistent with the unanimous view of
the Courts of Appeals that have considered the question.
It also comports with the objectives and principles that
animate the Shepard/Taylor line of cases, including the
need for certainty, the avoidance of extended proceedings
on collateral matters, and the impropriety of imposing
unfair burdens on criminal defendants.
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16
1. By Not Objecting, Reyes Admitted the
Facts Set Forth in the Presentence
Report
Pursuant to Rule 32(i)(3)(A) of the Federal Rules of
Criminal Procedure, a sentencing court “may accept any
undisputed portion of the presentence report as a finding
of fact.” This Court has repeatedly recognized that princi-
ple, see, e.g., United States v. Fagans, 406 F.3d 138, 142
(2d Cir. 2005) (“Since the Defendant made no objection to
the facts contained in the PSR, the fact of this prior
conviction may be taken as admitted, and its use to
enhance the base offense level was correct under the
Guidelines and encounters no Sixth Amendment objec-
tion.”); United States v. Rizzo, 349 F.3d 94, 99 (2d Cir.
2003) (“At sentencing, a district court ‘may accept any
undisputed portion of the presentence report as a finding
of fact.’” (quoting Fed. R. Crim. P. 32(i)(3)(A)); United
States v. Streich, 987 F.2d 104, 107 (2d Cir. 1993) (stating
that, where a defendant “failed to contest the allegations
contained in the PSR . . . , the court was entitled to regard
them as true.”), and has held that a defendant who fails, at
the time of sentencing, to challenge factual matters
contained in the presentence report “waives the right to
contest them on appeal,” United States v. Rizzo, 349 F.3d
at 99.
As described in greater detail above, it is undisputed
that Reyes did not contest any of the facts contained in his
Presentence Report. (See Br. 16, 17). Indeed, at the
sentencing proceeding, defense counsel agreed that the
Presentence Report should be made part of the record and
stated that the defense had “[n]o objections to the facts or
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17
the guideline calculations” contained therein. (A. 47). The
Government also had no objections to the facts reported in
the Presentence Report. Among the facts contained in the
Presentence Report was the following description of
Reyes’s battery conviction: “On March 19, 2004, the
defendant was detained at Falkenburg Road Jail when he
caused a disturbance in the pod. A detention deputy
responded and spoke with the defendant. The defendant
struck the deputy in the nose with a closed fist.” (PSR
¶¶ 72-73). Under Rule 32 and this Court’s precedents,
Chief Judge Preska was “entitled to regard [that uncon-
tested description] as true” at Reyes’s sentencing. United
States v. Streich, 987 F.2d at 107. Reyes cannot now
challenge those facts before this Court.
2. Reyes’s Admission Provides an
Adequate Basis for His Career
Offender Designation
Reyes contends that, under the modified categorical
approach, the District Court was not permitted to “rely on
the [Presentence Report] for the underlying facts of prior
convictions, [even] where the defendant fails to object to
the . . . findings.” (Br. 22). Neither the precedents of this
Court nor those of any other Court of Appeals support
Reyes’s position. Indeed, all four of the Courts of Appeals
that have considered this question have concluded that
uncontested facts contained in a presentence report may be
used by a sentencing court to determine the nature of prior
offenses. As one of those courts held, “[t]here is no reason
to go digging for a state-court indictment if the parties
agree on what it says.” Aviles-Solarzano, 623 F.3d at 475.
Rejection of such a common-sense rule would not advance
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any of the interests — such as certainty and fairness —
promoted by the Shepard and Taylor line of cases. Ac-
cordingly, Judge Preska could rely on Reyes’s admission,
as set forth in the uncontested facts of the Presentence
Report, that his 2004 battery offense involved the use of
“physical force” and was therefore a crime of violence
under Sections 4B1.1 and 4B1.2.
As noted above, the Presentence Report stated that
Reyes was a career offender based on “two prior felony
convictions for crimes of violence.” (PSR ¶¶ 12, 47).*
According to the Presentence Report, the two predicate
offenses were: (1) a 2005 conviction for battery of a law
enforcement officer, in violation of Florida Statutes
Section 784.07; and (2) a 2005 conviction for robbery, in
violation of Florida Statutes Section 812.13. (PSR ¶ 12).
On appeal, Reyes questions whether his battery
conviction constitutes a crime of violence under Section
4B1.2, in light of the Supreme Court’s holding in Johnson
v. United States that the statutory definition of battery
under Florida law encompasses both crimes that would
meet Section 4B1.2’s definition of “crime of violence” and
A subsequent section of the Presentence Report*
states that “prior felony convictions involving a crime of
violence and a controlled substance offense” cause Reyes
to be classified as a career offender. (PSR ¶ 86). This
appears to be a typographical error because, as Reyes
notes, he does not have a controlled substance conviction
that predates the instant offense. (Br. 18-19).
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19
crimes that would not. 130 S. Ct. at 1273. Although the*
Presentence Report makes clear that Reyes used violent
force in connection with his battery conviction, Reyes
argues that the District Court could not rely on the uncon-
tested facts set forth in the Presentence Report in order to
determine whether the 2005 battery conviction was a
crime of violence. (Br. 21-22).
While this Court generally bars reliance on presentence
reports when implementing the modified categorical
approach, it has left unresolved whether uncontested facts
set forth in presentence reports constitute an exception to
this rule. See Rosa, 507 F.3d at 156. The use of uncon-
tested facts in this fashion has been explicitly embraced by
four other Courts of Appeals. Those courts have concluded
that where a presentence report describes the facts under-
lying a previous conviction and the defendant, by failing
to object, admits the truth of those facts, sentencing courts
may rely on those undisputed facts to determine the nature
of the prior offense. See Aviles-Solarzano, 623 F.3d 470;
United States v. Siegel, 477 F.3d at 93-94; United States
v. Wade, 458 F.3d at 1277; United States v. Chauncey,
420 F.3d at 878.
As these courts have recognized, reliance on a defen-
dant’s admissions is fully consistent with the teachings of
Shepard and Taylor. In that line of cases, the Supreme
Court specifically approved the use of “written plea
agreement[s], transcript[s] of plea colloqu[ies], and any
explicit factual finding[s] by the trial judge to which the
That Reyes’s 2005 robbery conviction constitutes*
a crime of violence is not in dispute.
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20
defendant assented” in connection with the modified
categorical approach. Shepard, 544 U.S. at 16 (emphasis
added). Each of these sources constitutes an admission by
the defendant. There is no reason to believe that the
Supreme Court intended its list of admissions to be
exhaustive rather than illustrative of the type of evidence
to be consulted. The admission at issue here — uncon-
tested facts set forth in a presentence report — is similar
in nature to those enumerated by the Shepard Court. The
only significant difference is that these admissions were
made during the sentencing proceeding rather than in
connection with the underlying offense, but there is no
reason to believe that this difference matters for the
purposes of the modified categorical approach.
Indeed, the use of these admissions, like the other
sources approved in Taylor and Shepard, avoids the risk of
“collateral trial[s]” and “judicial factfinding” that are
impermissible under the modified categorical approach.
See Siegel, 477 F.3d at 93-94. It is also fully consistent
with notions of fairness and accuracy. When a sentencing
court adopts facts that are not in dispute, it does not
engage in impermissible factfinding or impose an unfair
burden on the defense to relitigate past convictions.
Rather, it simply accepts as true facts that the parties do
not contest. As Judge Posner observed in this context,
“Nothing is more common than for parties by stipulation
formal or informal to agree to facts that, were it not for the
stipulation, would have to be proved by evidence, in this
case a judicial record.” Aviles-Solarzano, 623 F.3d at 475;
see also id. (“A defendant’s criminal record is also
commonly stipulated.”). Quite the opposite of “collateral
trials” and “judicial factfinding,” the use of admissions
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21
under the modified categorical approach involves no
inquiry whatsoever on the part of the district court and
imposes no burden on the defendant.
Accordingly, Chief Judge Preska could properly rely
on Reyes’s admission, contained in the uncontested facts
of the Presentence Report, to determine whether Reyes
was a career offender under the Guidelines. As set forth
above, the Presentence Report stated that Reyes’s battery
conviction involved striking a law enforcement officer “in
the nose with a closed fist.” (PSR ¶¶ 72-73). Because
Reyes did not object to or otherwise contest the accuracy
of that statement, Chief Judge Preska could accept it as an
admission of the defendant. This admission is similar in
nature to those specifically approved by the Supreme
Court in Shepard and reliance on Reyes’s admission
would not run counter to any of the objectives set forth in
the Taylor and Shepard line of cases. In light of Reyes’s
admission, a factual basis existed for finding that his 2005
battery conviction involved the use of “physical force” and
was therefore a crime of violence under Sections 4B1.1
and 4B1.2.
3. The District Court’s Career-Offender
Finding Cannot Be Plain Error
Assuming arguendo that it was error to rely on Reyes’s
admission as a basis for classifying him as a career
offender, the error was not plain. To be plain, an error
must be “clear and obvious under the law at the time of
appellate review.” United States v. Stewart, 433 F.3d 273,
290 (2d Cir. 2006). In light of the applicable precedents of
this Court and its sister circuits, if Chief Judge Preska
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22
erred in sentencing Reyes, her error was far from clear and
obvious.
In Rosa, this Court discussed, but did not decide,
whether it would adopt the rule “that a sentencing court
may look to a PSR prepared for that case to determine the
underlying facts of a previous conviction when the defen-
dant fails to object to the PSR’s findings, and thereby
assents to those facts.” 507 F.3d at 156. In that opinion,
this Court observed that two Courts of Appeals had
already adopted such a position, did not cite any contrary
authority, and in no way intimated that such a rule would
be undesirable or inappropriate. Since Rosa, this Court has
not provided further guidance on the unsettled question of
whether a district court may rely on uncontested facts in a
presentence report when making a career offender deter-
mination. Where, as here, “the operative legal question is
unsettled,” a reviewing court typically will not find plain
error. United States v. Gamez, 577 F.3d 394, 400 (2d Cir.
2008).
In addition, the bulk of authority on this matter sup-
ported Chief Judge Preska’s use of the uncontested facts
contained in a presentence report. All four Circuits that
have decided this question have ruled that it is permissible
to classify uncontested facts in the presentence report as
admissions and to rely on them when determining the
nature of a prior offense. Had Chief Judge Preska rejected
this authority and adopted a contrary approach, there might
have been an exceedingly narrow basis to find plain error.
See United States v. Davila, 461 F.3d 298, 308 (2d Cir.
2006) (“It may be appropriate for this Court to find an
error plain, even in the absence of binding precedent from
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the Supreme Court or this Circuit, where other circuits
have uniformly taken a position on an issue that has never
been squarely presented to this Court. We emphasize,
however, that such cases are bound to be exceedingly
rare.”). But Judge Preska’s decision to follow the unani-
mous view of the Courts of Appeals on a question that
remained unsettled in this Circuit cannot constitute plain
error under this Court’s precedents. Accordingly, insofar
as Chief Judge Preska’s reliance on the uncontested
statements in the Presentence Report was error, it was far
from “clear and obvious,” and therefore not plain.
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CONCLUSION
The judgment of conviction should be
affirmed.
Dated: New York, New York
November 1, 2011
Respectfully submitted,
PREET BHARARA,
United States Attorney for the
Southern District of New York,
Attorney for the United States
of America.
JENNIFER E. BURNS,
JUSTIN ANDERSON,
Assistant United States Attorneys,
Of Counsel.
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