APPEALS BRIEF TEMPLATE -...

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.

Case: 10-1400 Document: 80 Page: 1 11/01/2011 434787 29

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


ii

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


iii

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


iv

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


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


2

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.


3

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


4

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


5

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


6

“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-


7

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


8

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.


9

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).


10

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).


11

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


12

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.


13

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,


14

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).


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.


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


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


18

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).


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.


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


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


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


23

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.


24

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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