TX Injury to Child by Act Not 2L1.2 16-Level COV; No Invited Error Where Counsel Misunderstood Relevant Precedent

United States v. Andino-Ortega, No. 09-40498 (5th Cir. June 8, 2010) (Barksdale, Garza, Dennis)

Two important holdings in this appeal of an illegal reentry sentence. But first, the facts:

Andino had a prior Texas conviction for injury to a child (Tex. Penal Code § 22.04), for which the PSR hit him with a 16-level crime-of-violence enhancement. At sentencing, he asked for a downward variance on the basis that he thought he was only facing a 4-level any-other-felony enhancement for that offense. Defense counsel stated:

The predicate offense in this case was injury to a child. . . . There is case law that says that injury to a child by omission is not a crime of violence and would only garner a 4-level enhancement.

However, there is case law—[p]articularly, I’m looking here at Perez-Munoz v. Keisler, 507 F.3d 357 [5th Cir. 2007], which finds that if there—the injury to a child stems from an intentional act, then it definitely is a crime of violence. Your Honor, . . . my client’s position throughout has been that [the injury] was the result of an accident.

Now, the fact remains that he pled to the offense as charged in the indictment which charged an intentional offense. . . .

Andino got a 60-month within-Guidelines sentence, and challenged the 16-level enhancement on appeal.

Which brings us to the First Important Thing: The Government argued that defense counsel's statements at sentencing concerning the enhancement constituted waiver of the issue. In United States v. Fernandez-Cusco, the Fifth Circuit "concluded that [similar] statements did not rise to the level of waiver, but 'arguably' constituted invited error. In an abundance of caution, the court nonetheless reviewed for plain error." Which is what the court did here, too.

Although we recognize the factual similarity here—Andino-Ortega’s counsel acknowledged that the 16-level enhancement was proper—he did so on the basis of a misunderstanding of this court’s precedent. The statements regarding the propriety of the crime-of-violence enhancement do not constitute a waiver because they do not evidence an intentional and knowing relinquishment of a right. Counsel’s failure to object below because he did not recognize the argument now being made on appeal is not a waiver. Accordingly, we review for plain error.

(citations omitted).

And plain error it was, which is Important Thing 2d. Defense counsel was mistaken about Perez-Munoz because that case involved the COV definition in 18 U.S.C. § 16(b), which is different from the definition applicable to guideline §2L1.2's 16-level enhancement. Section 16(b) reaches felony offenses that involve a "substantial risk that physical force against the person or property of another may be used in the course of committing the offense." Guideline §2L1.2's COV definition, by contrast, asks whether force is an element of the offense. Not the same question, so Perez-Munoz isn't controlling. (Yes, the §2L1.2 definition also lists specific offenses that are crimes of violence regardless of whether they have a force element, but injury to a child isn't one of them.)

Also not controlling is United States v. Gracia-Cantu, which held that Texas injury to a child by omission is not a COV under 18 U.S.C. § 16(a). Although § 16(a) is identical to the force clause of §2L1.2's COV definition, Andino was convicted of injury by act, not omission.

So what is controlling? United States v. Vargas-Duran and United States v. Calderon-Pena. They held that an offense must necessarily require physical force to fall within the force clause, and that if any set of facts would support a conviction without proof of force, then force isn't an element of the offense. "For instance, an offense under [the Texas injury-to-a-child statute] can be committed by intentional act without the use of physical force by putting poison or another harmful substance in a child’s food or drink." So it's not a 16-level COV.