July 18, 2019

Tenth Circuit: Particulars of Prior Conviction Are Relevant and Counsel Admitted in Court that Defendant Had Been Convicted of Burglary of Dwelling

The Tenth Circuit Court of Appeals published its opinion in United States v. Ventura-Perez on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision and sentence. Petitioner pleaded guilty to illegal reentry after deportation subsequent to an aggravated-felony conviction. On appeal, he raises two challenges. “First, he contends that the district court miscalculated his offense level under the Sentencing Guidelines. The court increased his offense level by 16 on the ground that his Texas conviction of burglary of a habitation was for ‘burglary of a dwelling’ and therefore a crime of violence.” Second, he contends that when the court imposed its sentence, it improperly refused to consider sentencing disparities created by fast-track programs in other districts.

The Court disagreed with Petitioner’s contentions. The Court held that “even if the Texas offense of burglary of a habitation encompasses more than burglary of a dwelling, the particulars of [Petitioner]’s prior conviction are relevant and his counsel admitted at sentencing in federal court that he had been convicted of burglary of an apartment, which is clearly burglary of a dwelling. . . . On the second contention we follow recent circuit precedent and hold that [Petitioner] cannot complain of sentencing disparities because he did not present to the sentencing court any evidence that he would have been eligible for fast-track treatment in another district.”

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