United States of America v. Juan Mendoza-Garcia, also known as Ramiro Gallegos, also known as Juan Florez

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-50980
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN MENDOZA-GARCIA, also known as
Ramiro Gallegos, also known as
Juan Florez,
Defendant-Appellant,
----------------------
Appeal from the United States District Court
for the Western District of Texas, El Paso
(EP-01-CR-834-ALL-DB)
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August 12, 2002
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Juan Mendoza-Garcia (“Mendoza”) pleaded
guilty to illegally re-entering the United States in violation of
8 U.S.C. § 1326(a) as charged in a one-count indictment. A notice
of penalty enhancement was attached to the indictment, indicating
that the government planned to prove that Mendoza had been
convicted on February 26, 2001, in the district court of Denver
County, Colorado, of a state felony offense of possession of a

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controlled substance sufficient to constitute an aggregated felony
for federal sentencing purposes. Before the magistrate judge,
Mendoza argued that the Colorado conviction was a misdemeanor
rather than a felony. The magistrate judge acknowledged the
dispute and indicated it would be resolved by the district court.
The probation officer who prepared the Presentence Investigation
Report (PSR) relied on the Colorado conviction to increase
Mendoza’s offense level by 16 levels pursuant to U.S.S.G. §
2L1.2(b)(1)(A).
Mendoza objected to the application of that provision to
enhance his sentence, relying on a computer printout (“TECS”)
produced by the government during discovery, as well as other
evidence. The probation officer stated that the Colorado court
documents indicated that Mendoza was convicted of a felony and that
conversations with state court personnel had confirmed that the
conviction was an aggregated felony.
At sentencing, counsel for Mendoza re-urged his objection to
the characterization of the Colorado conviction as an aggregated
felony. Counsel argued that Mendoza had pled guilty only to the
second count of a two-count indictment, and that the second count
was a misdemeanor for which he received a sentence of 90 days jail.
The district court overruled Mendoza’s objection and added the
16 levels for the Colorado controlled substance conviction as a
felony. After granting Mendoza’s request for an unrelated

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reduction, the court sentenced him to a prison term of 18 months.
Mendoza timely filed a notice of appeal.
In dealing with Mendoza’s objection regarding the Colorado
conviction, the court made no discrete factual findings; only the
conclusion that the crime of conviction was a felony. Mendoza
argues that the government failed to carry its burden of
establishing that the Colorado conviction qualifies as an
aggregated felony conviction for purposes of § 2L1.2. The
government depends entirely on the PSR and the PSR addendum as
sufficiently reliable evidence to support the district court’s
adoption of the recommendation in the PSR and application of the
16-level aggregated felony enhancement.
On July 26, 2002, the government filed an opposed motion to
supplement the record on appeal with a copy of a one-page
instrument purporting to be the Colorado judgment of conviction.
In its motion, the government acknowledges that the addendum to the
PSR “indicated that the Colorado judgment was available for review
by counsel,” that it “was not formally offered as evidence at the
sentencing hearing” but was nevertheless “available for review by
the parties and the district court.” That is insufficient: In so
many words, the government concedes, albeit less than forthrightly,
that the document in question was never before the district court
and thus never viewed by it. It thus could not have been relied on
by the court at sentencing. The court was therefore left to rely
on the probation officer’s representations which were less than

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dispositive regarding documentary support for the felony
characterization of the Colorado conviction. The government’s
motion implicitly acknowledges that, under the situation presented
here, with timely objections advanced by Mendoza accompanied by
non-conclusional specific allegations and supporting affidavits,
the PSR and its addendum do not provide sufficient indicia of
reliability, absent documentation to confirm, one way or the other,
whether the Colorado conviction was for a felony or a misdemeanor.
The probation officer’s remark about the Colorado instrument’s
being available for review by counsel leaves us uncertain as to
whether documents from that court were actually reviewed. The
probation officer’s recounting of a discussion with court personnel
in Colorado falls well short of supplying the reliability required
in light of Mendoza’s specific, supported objection. See United
States v. Patterson, 962 F.2d 409 (5th Cir. 1992); United States
v. Calverley, 11 F.3d 505, 515 (5th Cir. 1993), aff’d en banc, 37
F.3d 160 (5th Cir. 1994).
As the document from the Colorado court with which the
government seeks to supplement the record was never a part of the
PSR or its addendum and was never otherwise presented to the
district court, the government’s motion to supplement the record
must be, and hereby is, denied. Given Mendoza’s rebuttal evidence
and the absence of corroboration of the pertinent statements in the
PSR, the sentencing record fails to reflect “an acceptable
evidentiary basis for the court’s fact-findings at the sentencing

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hearing.” United States v. Lage, 183 F.3d 374, 383 (5th Cir.
1999). We are left with no choice, therefore, but to vacate
Mendoza’s sentence and remand for resentencing, at which a factual
determination can be made, either supporting or rejecting the
sentence enhancement requested by the government under §
2L1.2(b)(1)(A), by considering, inter alia, the best evidence of
the nature of the Colorado conviction.
MOTION TO SUPPLEMENT THE RECORD DENIED; SENTENCE VACATED; REMANDED
FOR RESENTENCING.

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