16-Level COV Enhancement Under U.S.S.G. §2L1.2(b)(1)(A)(ii) Not Plain Error, Partly Because of Defendant's Admission that PSR Was Correct

United States v. Martinez-Vega, No. 05-41498 (5th Cir. Nov. 29, 2006) (Barksdale, Benavides; Owen, concurring)

"Is everything in the PSR correct?" That's not an uncommon question for the district court to ask the defendant at sentencing. It's also a question that a defendant may not want to answer (or at least be very careful how he answers), as this case illustrates. The case also highlights the importance of making the necessary objections in the district court, so as not to be saddled with plain error review on appeal.

Martinez pled guilty to illegal reentry. He had a prior Texas conviction for what the PSR referred to as "sexual assault, a lesser included offense." Slip op. at 2. "The PSR further stated that the conviction stemmed from his sexual abuse of his four-year-old daughter. At the sentencing hearing, [Martinez] responded affirmatively to the court's question whether 'everything in the report [was] correct." Id. The district court treated that prior conviction as a 16-level crime of violence under U.S.S.G. §2L1.2(b)(1)(A)(ii). Martinez did not object to the enhancement.

On appeal, Martinez conceded that he had been convicted of sexual assault under Tex. Penal Code § 22.011, but argued that the record contained insufficient information to establish which subsection of § 22.011 underlay his conviction.

The Government supplemented the record with the indictment and judgment from the prior case. The indictment had charged Martinez with "'intentionally and knowingly caus[ing] his sexual organ to penetrate the mouth of . . . the victim, a child younger than 17 years of age and not the spouse of the defendant, and the victim was then and there younger than 14 years of age[,]'" an offense under Tex. Penal Code § 22.021(a)(2)(B). Slip op. at 4, 5. However, Martinez did not plead guilty to that charge. Instead, the judgment recited that Martinez pleaded guilty to "'the lesser charge contained in the Indictment.'" Slip op. at 5.

The Government argued that these documents established that Martinez was convicted under § 22.011(a)(2), which criminalizes sexual conduct with a person under 17 years of age. Martinez countered that the indictment could not be used to pare down § 22.011 because he didn't plead guilty to the charge in the indictment.

The court rejected Martinez's argument, and held that there was no plain error in treating the conviction as "sexual abuse of a minor," a specifically enumerated crime of violence for purposes of §2L1.2(b)(1)(A)(ii). First, the judgment referred to "the lesser charge contained in the Indictment," which the court took to be sexual assault of a person under 17 years old. Second, the PSR stated that the victim was Martinez's 4-year-old daughter and Martinez admitted that the PSR was correct. "We recognize that Appellant’s admission of the correctness of the contents of the PSR was a rather broad admission. Nonetheless, we are confident that, in view of this admission, combined with the state court judgment’s reference to 'the lesser included charge contained in the Indictment,' which was sexual assault of a minor, Appellant has failed to demonstrate that the error was clear or obvious." Slip op. at 7.

Judge Owen concurred in the judgment, but took a different view of Martinez's admission regarding the correctness of the PSR:

Reliance on Martinez-Vega’s admission regarding the content of the presentence report (PSR) is problematic for a number of reasons, one of which is that the PSR simply summarizes what a Hidalgo County, Texas Sheriff’s Office offense report said in connection with the prior conviction. When Martinez-Vega agreed that the “everything in the report [was] correct,” he admitted only that the PSR accurately recounted what was in the sheriff’s office report, not that he actually performed any or all of the conduct described in that report."

Slip op. at 10-11 (footnote omitted). What's even more interesting is that Judge Owen believes the admission wouldn't matter one way or the other:

Even if Martinez-Vega now admits that he sexually assaulted his daughter when she was four years old, which he has not done, that is not the same as admitting he was convicted of assaulting a four-year-old child. As we have seen, the record of conviction reflects that he was convicted of sexually assaulting a child younger than seventeen but he was not convicted of sexually assaulting a child younger than fourteen. Because of Martinez-Vega’s guilty plea to the lesser included offense, the government was never required to prove the greater offense.

The district court may certainly consider any admission by Martinez-Vega that he did in fact sexually assault his daughter when she was four years old in deciding whether an upward departure is warranted, but such an admission cannot be the basis for an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Slip op. at 11-12 (footnote omitted).

Judge Owen's position seems more faithful to the Taylor/Shepard approach. I don't think Taylor or Shepard contemplated a situation in which a court would rely on admissions about a prior conviction made outside of the proceedings that led to that conviction. However, Judge Owen's position is not that of the majority here, and it isn't the first time that the Fifth Circuit has upheld the application of a COV enhancement based on admissions made at the time of the illegal reentry sentencing (see here).

The scope and effect of a defendant's admissions about prior convictions may be an issue worth litigating, but it's also an issue that's avoidable. For one thing, the majority repeatedly referred to the standard of review: plain error. The result might have been different had Martinez objected to the enhancement in the district court, entitling him to de novo review of the enhancement issue. Also, remember that a guilty plea does not waive a defendant's Fifth Amendment privilege to remain silent at sentencing, and a court cannot draw an adverse inference from a defendant's assertion of the privilege. Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307 (1999). The rule of Mitchell should extend to questions about prior convictions, at least where the record of the prior conviction is insufficient to establish the basis for an enhancement.