Illinois Aggravated Battery with a Deadly Weapon is Crime of Violence

United States v. Reyes, No. 16-40241, — F.3d —, 2017 WL 3262281 (5th Cir. Aug. 1, 2017) (Reavley, Southwick; Southwick concurring; Owen dissenting)

The Court held that Illinois’s aggravated battery statute (720 Ill. Comp. Stat. § 5/12-3.05) is divisible, and that subsection (f)(1) (aggravated battery based on the use of a deadly weapon) is a crime of violence under the elements clause of guideline §2L1.2. Interesting is the Court’s disagreement over how to determine whether the statute identified elements or means.

Writing for the majority, Judge Reavley begins by acknowledging that Mathis required the Court to revisit United States v. Velasco, 465 F.3d 633 (5th Cir. 2006), to determine whether that case’s “implicit” holding—that the statute was divisible—retained vitality.

The majority held that the entirety of the statute is divisible, relying on a decision from the Illinois Supreme Court, People v. Cherry 63 N.E.3d 871 (Ill. 2016). It then addressed whether subsection (f), aggravated battery based on the use of a deadly weapon, listed means or elements. The Court noted that it could find no Illinois case that answered that question. It instead relied on dicta in Cherry that discussed aggravated battery with a firearm as a separate offense from aggravated battery. It found additional support by looking to another statute, Illinois’ Murderer and Violent Offender Against Youth Registration Act, which included § 5/12-3.05(f)(1) as a “violent offense against youth,” but not the remaining subsections, § 5/12-3.05(f)(2)–(4).

Judge Southwick concurred with the decision to affirm the sentence, but not that Cherry clearly resolved the issue.  Judge Southwick pointed to Illinois case law that suggests that the use of the term “element” in Cherry might not have the same meaning as what the Supreme Court intended in Mathis. Notwithstanding Cherry’s lack of clarity, Judge Southwick pointed to the “widely different crimes” described in the statute, as well as different classifications for some aggravated-battery provisions, which suggest that the subsection identified separate offenses rather than “means.”

 

Judge Owen’s lengthy dissent points to People v. Diaz, 614 N.E.2d 268, 270–71 (Ill. App. Ct. 1993), People v. Smith, 906 N.E.2d 1192 (Ill. App. Ct. 2007), and Illinois’s pattern jury instructions to reflect that jury unanimity is not required on which particular way a defendant committed aggravated battery. The statute, according to Judge Owen, is indivisible.

Rehearing En Banc on Whether 18 U.S.C. § 16(b) Is Unconstitutionally Vague

United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 537612, at *1 (5th Cir. Feb. 10, 2016) (Jolly, Costa; Higginson dissenting)

A divided panel held that 18 U.S.C. § 16(b) is unconstitutionally vague.  After examining the Johnson factors, the majority determined:  

Section 16's standard is imprecise in all the ways that the ACCA's standard was imprecise; in each case, however, it is arguably at least slightly less imprecise. The ACCA's standard referenced a confusing list of examples; § 16's text references no examples at all. The ACCA's standard encompasRehses a broad scope, as it considers post-offense conduct; so does § 16's standard, though its scope may be at least slightly limited by Leocal. The ACCA had occasioned judicial disagreement; so has § 16, though less. Comparing § 16's standard to the ACCA's standard, all we can say with confidence is that § 16's standard is imprecise, although not quite as imprecise as the ACCA's standard. 

Our course forward is clear, however, upon considering that Johnson was not a case at the very margins of vagueness and non-vagueness. Johnson did not hold that the ACCA's standard represents a minimum bar for precision; that is, Johnson did not hold that any standard slightly more precise than the ACCA's is acceptably precise. To the contrary, Johnson held that the ACCA's standard was so imprecise that the Court was justified in departing from stare decisis. Presumably, therefore, a marginally more precise standard could be problematically vague. Section 16's standard is that marginally more precise—yet still imprecise—standard.

Thus, considering each of the arguments and nuances brought to our attention, we hold that § 16 is unconstitutionally vague because, at bottom, § 16 requires courts both to imagine an ordinary/archetypical case and then to judge that imagined case against imprecise standard. Under Johnson, this means that § 16 is unconstitutionally vague, and we so hold.

On the Court’s own motion, a majority of the circuit judges voted to rehear this case en banc.  Oral argument is tentatively scheduled for the week of May 23, 2016.  Stay tuned.

Public Comment Sought for Sentencing Commission Proposed Amendments

The U.S. Sentencing Commission released proposed amendments to the Sentencing Guidelines at the beginning of January.  USSC Press Release.

Here is a link to the amendment related to the 4B1.2 crime of violence definition.  In light of Johnson v. United States, 135 S. Ct. 2551 (2015), the amendment deletes the residual clause from 4B1.2(a)(2).

The Commission is also recommending amendments to 2L1.2, alien smuggling, child porn distribution with file sharing programs, age and vulnerable victim enhancements, conditions of probation and supervised release, animal fighting, compassionate release, and other miscellaneous amendments.

The closing date for public comment is March 21, 2016.

Texas Aggravated Assault with Deadly Weapon Conviction Is Generic “Aggravated Assault” even though Judgment of Conviction Had No Affirmative Weapon Finding

United States v. Sanchez-Sanchez, No. 14-10305 (5th Cir. Feb. 24, 2015) (Higginbotham, Smith, Graves)

This case involved the reliability of a judgment of conviction to determine that Sanchez-Sanchez’s prior state conviction constituted “aggravated assault” in the generic sense to support the 16-level enhancement under § 2L1.2. 

The parties agreed that Sanchez-Sanchez was convicted under the Texas aggravated assault statute, Tex. Penal Code § 22.02(a).  Section 22.02(a) contains offenses that are COVs (such as assault with a deadly weapon) and ones that are not (such as simple assault on a peace officer). Under the modified categorical approach, the panel can rely on Shepard documents to narrow Sanchez-Sanchez’s conviction to a specific offense under § 22.02(a). 

Sanchez-Sanchez pled guilty in Texas to aggravated assault with a deadly weapon, and the indictment alone would establish a conviction for aggravated assault with a deadly weapon.  Sanchez-Sanchez argues, however, that the judgment casts doubt on whether he was convicted under that subsection because the judgment does not make an affirmative finding as to the use of a deadly weapon.

The panel concludes that the judgment is not inconsistent with the indictment because, in Texas, an “affirmative finding” that a deadly weapon was used is significant only for the determination of whether probation or parole can be granted.  “In other words, the failure to make such an affirmative finding relates to sentencing, not to the underlying offense conduct.”  The panel discusses competing interpretations by lower Texas appellate courts about the trial court’s discretion to decline to enter the affirmative finding in the judgment, but concludes that this disagreement does not change the holdings by the Texas Court of Criminal Appeals on which the panel relies.  “The absence of an affirmative finding does not amount to a finding that the offense did not involve a deadly weapon.”  The sentence is affirmed.

The updated § 2L1.2 Crime of Violence list is available on fd.org.

Florida Manslaughter Not § 2L1.2 COV Because Requires Less than Recklessness as to Death

United States v. Garcia-Perez, No. 13-20482 (5th Cir. Feb. 23, 2015) (Jolly, Higginbotham, Owen)

The Fifth Circuit reminds us again that the name of a state conviction is not dispositive as to whether it is a crime of violence (COV).  In this case, Garcia-Perez was convicted of illegal reentry, and the district court assessed a 16-level enhancement for his conviction of manslaughter in Florida. 

Florida manslaughter, at the time of the offense, encompassed the “killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification….”  Fla. Stat. § 782.07(1) (1995).  Proof of manslaughter does not require proof of force, so the conviction does not meet the § 2L1.2 COV elements program.

“Manslaughter” is one of the enumerated § 2L1.2 COV offenses, however.  The generic definition of manslaughter requires a mental state of either intent to kill or recklessness, a “conscious disregard of perceived homicidal risk.”  United States v. Bonilla, 524 F.3d 647, 654 (5th Cir. 2008).  The panel reviewed Florida case law and determined that Florida manslaughter does not require intent to kill and that a long line of cases held that “unexpected deaths caused by intended acts can be enough to prove manslaughter.”  Indeed, the fact that a defendant could not have reasonably believed that death was a probable result of an intentional act does not defeat a manslaughter conviction in Florida. 

Because Florida manslaughter is not limited to acts committed with conscious disregard of a perceived risk of death, it is broader than the definition of generic contemporary manslaughter.  The district court erred by enhancing Garcia-Perez’s offense level, and the error was not harmless.  The panel vacates the sentence and remands for resentencing.

The updated § 2L1.2 Crime of Violence list is available on fd.org.

Louisiana Aggravated Battery Not Categorically § 2L1.2 COV Because It Includes Administering Poison

United States v. Herrera-Alvarez, No. 12-41425 (5th Cir. May 22, 2014) (Davis, Garza, Dennis)

Herrera-Alvarez was convicted of illegal reentry and had a prior Louisiana conviction for aggravated battery under Louisiana Revised Statutes section 14:34.  The panel determines that section 14:34 as a whole is not categorically a § 2L1.2 crime of violence (“COV”) because it “criminalizes aggravated batteries committed by administering poison, which does not necessarily entail the use of destructive or violent physical force.” 

However, under the modified categorical approach, Herrera-Alvarez’s aggravated battery conviction is a COV.  Under Louisiana law, “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”  Herrera-Alvarez’s charging document specifically said that he committed aggravated battery with a dangerous weapon, to wit: a knife, thereby excluding the possibility that the aggravated battery was committed by means of poisoning. 

The panel reasons that the touching of an individual with a deadly weapon is a sufficient threat of force to qualify as a COV.  Thus, Herrera-Alvarez’s conviction is a COV because it necessarily contains, as an element, the use, attempted use, or threatened use of force by requiring both physical contact and the use of a dangerous weapon used in a manner calculated or likely to produce death or great bodily harm.  The panel affirmed the 16-level enhancement and rejected Herrera-Alvarez’s arguments that the statute only requires offensive touching and that the offense can be committed while merely possessing the dangerous weapon, not touching an individual with it.

As a side note, the panel also explains why the instant case was not controlled by decisions finding that Louisiana aggravated battery is a COV under § 4B1.2(a) and a “serious violent felony” for purposes of 18 U.S.C. § 3559(c).  The panel explains that there is a “salient statutory distinction among the statutes and Guidelines provisions at issue,” so the other precedent does not control the § 2L1.2 determination.  For example, Louisiana aggravated battery is a COV under the residual clause of § 4B1.2(a) because it involves conduct that presents “a serious potential risk of physical injury to another’ and is “purposeful, violent, and aggressive.”  Section 2L1.2, however, does not have a comparable residual clause.  This is an important reminder to be sure to address the correct COV definition when analyzing and researching a COV issue because it can make a difference.

Boiler Plate Judicial Admission Sufficient to Narrow Conviction Under Modified Categorical Approach to Texas Penal Code § 30.02(a)(1), a COV

United States v. Conde-Castaneda, No. 13-10590 (5th Cir. May 28, 2014) (Jolly, Garza, Higginson)

In prior decisions, the Fifth Circuit has held that a conviction for burglary under Texas Penal Code § 30.02(a)(1) is a § 2L1.2 crime of violence (COV), United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), while a conviction for burglary under § 30.02(a)(3) is not, United States v. Constante, 544 F.3d 584 (5th Cir. 2008).  The Fifth Circuit has also held in an unpublished decision that a general conviction under § 30.02 that cannot be narrowed to (a)(1) through the modified categorical approach is not a COV because § 30.02 is broader than the generic definition of burglary.  United States v. Morales-Ramirez, 540 F. App’x 368 (5th Cir. Sept. 25, 2013) (unpublished).

In Conde-Castaneda, the panel first decides that it can apply the modified categorical approach, since § 30.02(a) is divisible, to look at documents outside of the judgment (Shepard documents) to determine which of the three alternatives of § 30.02(a) form the basis of Conde-Castenada’s conviction.  Then the panel looks to the following documents:

-          Judgment, which establishes that Conde-Castaneda under § 30.02(a) but not a specific subsection;

-          Indictment, which charges Conde-Castaneda with violating § 30.02(a)(1) and § 30.02(a)(3), “but obviously cannot by itself establish the ultimate basis for his conviction”;

-          Written judicial confession, which states “I have read the Indictment . . . and I committed each and every act alleged therein . . . .”

The panel holds that the confession, “a pre-printed template under which Conde-Castaneda signed his name” sufficiently establishes that he was convicted of § 30.02(a)(1).  Conde-Castaneda argues that the template confession is insufficient based on United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), which held that the adoption of a boiler plate judicial confession admitting that Espinoza committed the assault with every listed category of mental culpability did not conclusively prove mens rea.  The panel rejects the argument because of an earlier decision, United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008), which held that “a template confession sufficed to establish which offenses a conviction indicated.”  “Espinoza cannot overturn the earlier decided case of Garcia-Arrellano.  To the extent that the holding of Espinoza is inconsistent with Garcia-Arellano, Garcia-Arellano controls.”

Thus, relying on Garcia-Arellano, the panel finds that Conde-Castaneda was convicted of burglary under § 30.02(a)(1) and receives the 16-level COV enhancement under § 2L1.2.  Given Espinoza, though, it might be worth preserving that objection—particularly for alternative elements in a statute that are mutually exclusive, thereby casting doubt as to the actual admission of guilt as to each one of them.

Maryland Attempted Sexual Contact with Person Under 14 Is § 2L1.2 COV

United States v. Chacon, No. 12-41301 (5th Cir. Feb. 6, 2014) (Smith, DeMoss, Higginson)

This is the latest application of the plain-meaning approach announced in United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc).  Chacon pled guilty to illegal reentry but challenged the 16-level enhancement for his prior conviction for attempted sexual contact with a person under 14 years in violation of Maryland’s Criminal Law § 3-307(a)(3).  The panel rejected Chacon’s argument in a 3-page opinion, stating simply:

After reviewing § 3-307(a)(3) we are satisfied that a violation of that section constitutes sexual abuse of a minor under the plain-meaning approach.  See United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013).

Chacon did not argue that “attempt” under Maryland law is different than “attempt” under the Guidelines, so the panel simply cited to § 2L1.2 cmt. n.5 which states that a “crime of violence” includes an attempt to commit a crime of violence.

The panel did not decide whether § 3-307(a)(3) also constituted a crime of violence as a “forcible sex offense.”  Nor did the panel reach the other issue Chacon raised, which was—if § 3-307(a)(3) is not categorically a crime of violence—whether the court could consider an Application for Statement of Charges from Maryland to narrow the conviction.  Since the panel found attempted sexual contact with a person under the age of 14 was categorically a crime of violence, it did not have to look to any documents to narrow the conviction.

Washington Residential Burglary Is § 2L1.2 Crime of Violence

United States v. Guerrero-Navarro, No. 12-40802 (5th Cir. Dec. 16, 2013) (King, Benavides, Dennis)

Guerrero pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 and possessing a firearm as a prohibited person in violation of 18 U.S.C. §§ 922(g)(5)(A).  Over Guerrero’s objection, the district court determined that his prior conviction for residential burglary in Washington, Wash. Rev. Code § 9A.52.025, is a “crime of violence” both under § 2L1.2 and § 4B1.2(a).  The court applied the enhancements and sentenced Guerrero accordingly.

Guerrero argues that the Washington statute was broader than the generic definition of burglary because it includes fenced areas.  Washington defines a dwelling as “any building or structure . . . which is used or ordinarily used by a person for lodging” and “building” as “any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein . . . .”  The panel rejects this argument, finding “there is little or no ‘realistic probability’ that a Washington court would apply the statute to anything other than the structures permitted by” Supreme Court and Fifth Circuit precedent.  See, e.g., United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining burglary of a dwelling as the unlawful entry into or remaining within, with the intent to commit a crime, a “structure, tent, or vessel where someone lives”).  The panel recognizes that the Ninth Circuit reached the opposite conclusion in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), finding that Washington has a broader definition of dwelling.  The panel, however, justified its different conclusion because of “the benefit of an additional decade of jurisprudence in which Washington’s courts have consistently interpreted the term such that it denotes and connotes traditional structures, and only those used for human habitation.”  Thus, Washington residential burglary is a crime of violence for purposes of § 2L1.2(b)(1)(A).

Note: The opinion makes a few confusing misstatements that do not affect the ultimate analysis.  Don’t let those confuse you.  For instance, it applies the U.S.S.G. § 4B1.2 definition of a “crime of violence” instead of the definition in § 2L1.2.  Both § 4B1.2 and § 2L1.2 state that “burglary of a dwelling” is a crime of violence, and the § 4B1.2 definition also applies to this case because the guideline for his firearm conviction, U.S.S.G. § 2K2.1, refers to the crime of violence definition at § 4B1.2.  Also, the opinion states that Guerrero pled guilty to “knowing unlawful presence in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4).”  He really pled guilty to illegal reentry in violation of 8 U.S.C. § 1326.  Being present in the United States is not a crime unless it satisfies the criteria of “found in” described in 8 U.S.C. §1326.  Section 202 of Title 6 of the U.S.C. merely enunciates the responsibilities of the Under Secretary for Border and Transportation Security.

Texas Injury to a Child is a Career Offender COV under Modified Categorical Approach

United States v. Nieto, No. 12-50500 (June 27, 2013) (Garza, Southwick, Haynes)

The panel finds that Injury to a Child in violation of Texas Penal Code § 22.04(a) is a “crime of violence” under the U.S.S.G. § 4B1.2(a)(2) residual clause, so Nieto was properly sentenced as a career offender.  The panel used the modified categorical approach to determine whether Nieto’s crime involved conduct that presented a serious potential risk of physical injury to another.  Acknowledging that a prior conviction under § 22.04 does not constitute a “crime of violence” under U.S.S.G. § 2L1.2 because that definition requires force to be an element of the statute of conviction, the panel found that intentionally or knowingly causing a child bodily injury by an act—which is what Nieto’s indictment essentially charged—involves conduct that presents a serious potential risk of injury to another.

The panel also held that the evidence was sufficient to convict the Barrio Azteca defendants on RICO substantive and conspiracy charges as well as conspiracy to possess with intent to distribute controlled substances, and that the district court did not err by “conducting ex parte interviews with the acquiescence of counsel to evaluate intrinsic influence[,]” namely jurors’ anxiety about the case and their safety concerns.  The district court dismissed without objection the one juror who had the extrinsic influence of her husband contacting a friend who then contacted the case officer out of concern for the juror’s safety. 

Florida Conviction of Sexual Battery is § 2L1.2 Crime of Violence

United States v. Garza-Guijan, No. 11-20508 (Apr. 29, 2013) (Jones, Dennis, Higginson)

The panel found that Garza’s prior Florida state court conviction for sexual battery was a "forcible sex offense" as defined in the U.S. Sentencing Guidelines for a sixteen-level enhancement under § 2L1.2. The Florida statute prohibited committing sexual battery upon a person 12 years of age or older "without that person’s consent" and with the use of "physical force and violence not likely to cause serious personal injury." The panel dismissed Garza’s argument that the "contours of non-consent under Florida law are somehow broader than the Guidelines category."

The Government agreed on appeal that the district court erred in finding that Garza’s prior Florida burglary conviction was a crime of violence. See United States v. Gomez-Garza, 485 F.3d 301 (5th Cir. 2006). Of course, that did not help decrease Garza’s sentence given his sexual battery conviction.

Texas Burglary of a Habitation with Intent to Commit Theft is COV (plain error)

US v. Morales-Mota, No. 12-40491, (5th Cir. 2013) (Smith, Prado, Higginson) (per curiam)

The Fifth Circuit really means it this time. Seven years ago, the Fifth Circuit held that burglary of a habitation under Texas Penal Code § 30.02(a)(1) constitutes burglary of a dwelling and supports an enhancement under U.S.S.G. § 2L1.2, United States v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), and it did so again last week.

Defense argued that the definition of "owner"—a person who has "a greater right to possession of the property than the actor"—that is part of the Texas burglary definition made the statute broader than the generic definition of burglary. In an unpublished decision, the Fifth Circuit rejected a similar argument in an ACCA case. United States v. Joslin, No. 11-40863, 2012 WL 3488717 (5th Cir. Aug. 14, 2012) (unpublished). In Morales-Mota, the Fifth Circuit found the reasoning in Joslin persuasive and held that the COV enhancement was proper. According to the Joslin panel:

Joslin has failed to provide on appeal any evidence that Congress intended to exclude Texas’ unique definition of ownership when applying the ACCA. In Taylor v. United States, the Supreme Court found that Congress listed burglary, along with arson, in its enumerated offenses because of the crime’s "inherent potential for harm to persons." 495 U.S. at 588, 110 S.Ct. 2143. The Court found that Congress intended to prohibit crimes that often result in the possibility of violence between the offender and an occupant. Id. Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.

So, Texas burglary of a habitation with intent to commit theft remains a § 2L1.2 crime of violence... at least on plain error review.

Legally Non-Consensual Sex Offenses, Even If Involving Consent In Fact, are "Forcible Sex Offenses" Under §2L1.2's COV Definition

United States v. Rodriguez-Juarez, No. 09-41001 (5th Cir. Jan. 10, 2011) (per curiam) (Higginbotham, Smith, Haynes)

Remember the Fifth Circuit cases, such as Luciano-Rodriguez and Sarmiento-Funes, which held that sex offenses that are factually consensual but legally non-consensual (such as when the victim is too intoxicated to legally consent) are not "forcible sex offenses" for purposes of the crime-of-violence definition applicable to guideline §2L1.2's 16-level enhancement?  Those cases are no longer good law in light of a 2008 amendment to the COV definition:

In 2008, after the above decisions, . . . the Guidelines were amended. The new Guidelines specify that the definition of “crime of violence” includes sexual offenses “where consent to the conduct . . . is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). In its reasons for the amendment, the Sentencing Commission explained that “[a]pplication of the amendment . . . would result in an outcome that is contrary to cases excluding crimes in which ‘there may be assent in fact but no legally valid consent’ from the scope of ‘forcible sex offenses’” and cited examples of such cases, including Luciano-Rodriguez and Sarmiento-Funes. U.S.S.G. app. C, amend. 722.

This court has not yet addressed what effect the amended crime of violence definition has upon its previous rulings addressing whether a conviction for a sexual offense involving a person whose consent was legally invalid constitutes a forcible sexual offense. . . .

Because we have not previously addressed this issue in a published opinion, we do so here and conclude that the effect of the revisions to the Sentencing Guidelines is to make our prior precedent inapplicable to sentences calculated under the revised version of U.S.S.G. § 2L1.2(b)(1)(A)(ii). . . .

CA "Willful Infliction of Corporal Injury" a §2L1.2 16-Level COV, But CA "Making Criminal Threats" Not

United States v. Cruz-Rodriguez, No. 09-40500 (5th Cir. Nov. 2, 2010) (per curiam) (King, Benavides, Elrod)

And now for something completely different: a §2L1.2 16-level COV case.

Cruz got hooked with the enhancement on the basis of two Golden State priors:

• Cal. Penal Code § 273.5—willful infliction of corporal injury
• Cal. Penal Code § 422—making criminal threats

Neither is an enumerated COV, so the question was whether either of them "has as an element the use, attempted use, or threatened use of physical force against the person of another."

One does, one doesn't:

With respect to the willful infliction of corporal injury offense, we previously rejected this argument in an unpublished opinion, holding that California Penal Code § 237.5(a) “penalizes the intentional use of force that results in a traumatic condition.” We find this reasoning persuasive. Moreover, our previous decision is consistent with the Ninth Circuit’s analysis of § 237.5(a). Accordingly, we hold that the offense of willful infliction of corporal injury is a crime of violence for the purpose of sentence adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

On the other hand, with respect to the offense of making a criminal threat, we previously held in an unpublished opinion that “the use, attempted use, or threatened use of physical force against the person of another” is not an element of California Penal Code § 2L1.2(b)(1)(A)(ii) [should be § 422] “because it is possible under [California] law for the State to obtain a conviction under . . . the terroristic threats statute without proof of the threatened use of physical force against another person . . . .” We likewise find this reasoning persuasive. In addition, this court reached the same conclusion with respect to a similar Pennsylvania statute, holding that the generic terroristic-threat offense at issue in that case is not a crime of violence. Therefore, we hold that the offense of making a criminal threat is not a crime of violence for the purpose of sentencing adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

(cites omitted).

GA Residential Burglary Statute Is Within Curtilage of Generic Burglary of a Dwelling

United States v. Garcia, No. 09-20587 (5th Cir. Oct. 27, 2010) (Barksdale, Stewart, Southwick)

Another day, another COV case.  The opinion doesn't contain anything new on the categorical approach or any meta-COV issues; it's just one more to add to your list.

The context: Illegal reentry case, the 16-level COV enhancement under guideline §2L1.2 (which includes burglary of a dwelling as an enumerated COV).

The prior offense at issue: Georgia burglary of a dwelling.

The defense argument: Generic burglary of a dwelling doesn't include entries into structures within a home's curtilage, only entries into the actual dwelling house.  Georgia burglary of a dwelling historically encompassed entries into outbuildings.  Although the current version of the burglary statute no longer explicitly mentions curtilage, a Georgia court of appeals decision post-dating the statutory change cited an older pre-change curtilage case when defining the term "dwelling house" as used in the burglary statute.  Therefore, Q.E.D.

The court's holding: You're right about the exclusion of curtilage from the the generic definition of "burglary of a dwelling."  But you're wrong about the Q.E.D. part.

We conclude that none of the Georgia opinions interpreting the current version of the Georgia burglary statute has held that a “dwelling house” includes structures within the curtilage. The current statute has other provisions that allow for conviction if entry is into certain other buildings, but those structures are not “dwelling houses.” The term “dwelling” within the Georgia burglary statute comports with the ordinary, contemporary definition of that term.

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.

Generic "Arson" Is Willful and Malicious Burning of Property; Doesn't Require Threat of Harm to a Person

United States v. Velez-Alderete, No. 08-20557 (5th Cir. June 2, 2009) (per curiam) (King, Garwood, Davis)

Various COV definitions include "arson" as an enumerated offense. Ever wondered what generic arson is? Wonder no longer. Velez-Alderete holds, as have other circuits, that "the generic, contemporary definition of arson involves a willful and malicious burning of property[,]" without any requirement that the burning threaten harm to a person. Velez-Alderete further holds that Texas's arson falls within that defintion:

Texas proscribes starting a fire “with intent to destroy or damage” various types of property ranging from structures and vegetation on open-space land to vehicles when the perpetrator knows that the vehicle is insured or when he is reckless concerning the safety of the property of another. All of these variations involve a willful and malicious burning of property.

At least 35 other states' arson statutes fit the bill, as well. Refer to the string cite in footnote 4 if you'd like to know which ones those are.

Guidelines Calculation Error Doesn't Require Reversal If Sentence Didn't Result From That Error, Plus More on Plain Error

United States v. Ruiz-Arriaga, No. 08-40242 (5th Cir. Apr. 9, 2009) (Jones, Wiener, Benavides)

We know that, when imposing sentence, the district court must correctly calculate the advisory Guidelines range. Let's say the court gets the Guidelines calculation wrong, but says something along the lines of, "Even if the Guidelines range was different, I would still impose a sentence of X months, for the following reasons . . . ." Does the procedural error require vacation of the sentence?

Not necessarily. The Fifth Circuit recently clarified that a procedural error does not require reversal if the error was harmless, meaning that the error did not affect the sentence imposed. That's essentially what Ruiz-Arriaga holds, although it couches the matter in slightly different terms.

In this case, Ruiz pleaded guilty to illegal reentry. He had a prior Texas conviction for sexual assault of a child. The PSR recommended a 16-level COV enhancement for that prior conviction, producing an advisory range of 46 to 57 months. Ruiz objected to the enhancement (the details of which the opinion doesn't explain), arguing that the correct range was 10 to 16 months (presumably based on treating the sexual assault prior as a 4-level "any other felony" under §2L1.2(b)(1)(D), although the opinion doesn't explain that, either). The district court overruled the objection and sentenced Ruiz to 46 months, explaining that,

in the event that the court is incorrect about the guideline range, that a sentence at certainly something more than 10 to 16 months, which if the court were wrong is what—I haven’t recalculated, but that’s what [defense counsel] says would be the range. The court believes that a sentence of 46 months in custody would be reasonable, even if the court is not correct about the guideline range.

Ruiz appealed. Without addressing whether the district court erred in applying the 16-level enhancement, the court of appeals concluded that any error was harmless:

As we noted in United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008), “[n]ot all errors in determining a defendant’s guideline sentence require reversal.” Id. at 656. Where the district court “considered the possible guideline ranges that might apply to the defendant with and without a disputed enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense.

Of course, this brings up the question of just how much 3553 explanation is necessary to avoid a causal link between a Guidelines-calculation error and the sentence imposed. It must be more than the above quote from the district court, because the opinion also mentions that "[d]uring the sentencing hearing, the district court stated that it had considered the non-enhancement range offered by the defense and would have imposed the same sentence independently of the Guidelines in light of the seriousness and recent nature of the statutory rape conviction." So an explanation stating simply that "this court would impose the same sentence even if it is wrong about the applicable Guidelines calculation" shouldn't cut it. The district court must still address the defendant's argument, and provide 3553-based reasons for the alternative non-Guidelines sentence.

And in keeping with a recent theme, the opinion offers another sign that the Fifth Circuit is getting stricter about plain error review. Although Ruiz argued in the district court that the correct advisory range was 10 to 16 months, he argued on appeal that it was actually 8 to 14 months due to an error in the criminal history calculation. As Ruiz didn't make the argument below, plain error review applied. Quoth the court:

First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel now disavows. Trial counsel’s misstatement essentially waives the argument for any other sentencing range in this appeal. It is well established that appellate courts may correct errors of law under a plain standard where trial counsel simply stood mute at sentencing and failed to object to the PSR. . . . This is because a “plain” error is one that the district court, in its oversight of sentencing, should have been alert to correct. Sentencing under the Guidelines is so complex, however, that the court should not be faulted for “plain” error when counsel’s affirmative statements allay any possible concern.

(emphasis added). Plus, no prejudice: "It is hardly likely that the court would have responded differently to a two month difference in range when it so clearly rejected the slightly higher range."

Has the Fifth Circuit's Approach to Plain Error Review Been Too Permissive?

United States v. Ellis, No. 07-11276 (5th Cir. Mar. 26, 2009) (Higginbotham, Elrod, Haynes)

We all know that plain error review is not your friend. Nevertheless, there have been more than a few cases, particularly in the COV arena, in which the Fifth Circuit has vacated sentences on a finding of plain error. But has the court been too quick to pull the plain error trigger? That's the view of the panel in Ellis. Which is all the more reason, as if any more was necessary, to properly preserve issues for appellate review.

This case involved a particularly thorny COV issue (and, to be fair, one that doesn't exactly leap off the pages of the PSR). Ellis, who was convicted of three counts of bank robbery, also had prior North Carolina convictions for common law robbery and attempted common law robbery. At sentencing, the district court found Ellis to be a career offender, based on a determination that the NC priors were COVs under guideline §4B1.2. Ellis did not object to that finding. (Or as the opinion puts it, "without any whisper of [an objection] uttered in the district court[,]" "[d]espite the fact that Ellis’ criminal history was the most salient factor in his sentence[.]" You can see where this is going.)

On appeal, Ellis conceded that NC common law robbery is a §4B1.2 COV, but argued that "in North Carolina, attempted robbery is not a crime of violence because state law defines that offense—specifically the 'overt act' requirement—more broadly than most other states." And for that reason, said Ellis, his attempt conviction fell outside all three prongs of the §4B1.2 COV definition.

The court analyzed the broader-than-generic-attempt issue at length, ultimately concluding that "the question is close as to whether Ellis’ North Carolina attempted common law robbery falls within the generic, contemporary meaning of attempt in this context[,]" and that "[t]he question as to whether the attempt falls under one of the other catchall provisions of § 4B1.2 is also close[.]" But the court declined to pursue the question any further than that:

Our narrative of the decisional path this court would have to traverse to resolve the merits of defendant’s objection to his sentence, an objection never made to the trial court, makes plain beyond peradventure that any error was not plain. As Ellis would have it, all of the close calls fall his way, and that is enough. Yet, the error said to be plain was never the subject of objection by able trial counsel. Putting aside its obscurity at trial, even now after full briefing and oral argument the error is not plain or obvious, indeed it is most uncertain whether there was any error at all.

Ellis, of course, pointed to a number of other COV plain-error reversals. But the court concluded that the issue here was far less clear than in those cases, whose "brief analyses turn[ed] on the elements of the crime sustaining the conviction or upon other straightforward applications of case law to correct what would be more promising candidates for clear error." The court also found support in the Supreme Court's recent explication of plain error review in Puckett v. United States, which "reaffirmed the principle that to satisfy the second prong of plain error inquiry, 'the legal error must be clear or obvious, rather than subject to reasonable debate.'"

And here's where the court really starts calling into question its recent approach to plain error:

This emphasis on the second prong of plain error analysis is particularly important given the development of this court’s case law on the third and fourth prongs of the plain error test in the sentencing context, where the court has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand, although we are not convinced that the case law on this point is settled or as categorical as language in some cases might make it seem. To our eyes, the lack of any clear error here means that Ellis’ sentence should stand.

Even if we were inclined, this is no occasion to offer metrics for the severity of an increase worked by decisions later found to have been error and such a departure as to summon our discretion to correct an injustice. Not every error that increases a sentence need be corrected by a call upon plain error doctrine. It bears emphasis that all defendants’ appeals challenging a sentence rest on the practical premise that the sentence should be less. The doctrine of plain error serves powerful institutional interests, including securing the role of the United States District Court as the court of first instance, as opposed to a body charged to make recommendations to appellate courts. And even if an increase in a sentence be seen as inevitably “substantial” in one sense it does not inevitably affect the fairness, integrity, or public reputation of judicial process and proceedings. To conclude that not correcting the error claimed here casts doubt upon the fairness, integrity, or public reputation of the proceeding drains all content from the doctrine of plain error.

There's no way to tell right now whether the Fives will crack down on plain error review going forward. We've already seen the court requiring pretty specific arguments and objections in the district court just to avoid plain error review in the first place. So yes, the plain error bar will probably get higher. Better to avoid finding out for sure.

17 Year-Old not a "Minor" for Purposes of Generic "Sexual Abuse of a Minor" & How Specific Must COV Objection Be to Avoid Plain Error Review?

United States v. Munoz-Ortenza, No. 07-51344 (5th Cir. Mar. 18, 2009) (Davis, Clement, Elrod)

Recall that in United States v. Lopez-DeLeon the Fifth Circuit held that California's statutory rape provision---which sets the age of consent at eighteeen---is broader than generic "statutory rape," an enumerated COV for purposes of guideline §2L1.2's 16-level enhancement. Why? Because 33 states, the District of Columbia, the U.S. Code, and the Model Penal Code set the age of consent at sixteen.

Okay, change the facts a little bit. This time the prior offense is oral copulation of a minor, in violation of Cal. Penal Code § 288a(b)(1). Like California statutory rape, it also criminalizes certain sexual acts with anyone under age eighteen. Is it "sexual abuse of a minor," also one of §2L1.2's enumerated COV's?

Munoz-Ortenza holds that § 288a(b)(1) is broader than generic sexual abuse of a minor. As in Lopez-DeLeon, the court canvasses state and federal statutes to come up with a generic definition of "minor." It finds that only six states plus D.C. define a minor as a person under eighteen when it comes to criminalizing oral copulation. A large majority require the minor to be under age sixteen, with a handful of others saying "under seventeen." Because the California statute includes some conduct---oral copulation with a seventeen-year-old---that would not be illegal under the majority view, it is broader than generic sexual abuse of a minor and not categorically a COV.

So what about a person with a prior conviction for such an offense in a state that defines a "minor" as a person under age seventeen? Most states require the minor to be under age sixteen, so that offense wouldn't be generic sexual abuse of a minor would it? Sayeth Munoz-Ortenza:

Elsewhere we have held that “minor” in this context includes those under seventeen. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008), cert. denied, 2009 WL 166492 (U.S. Feb. 23, 2009); Najera-Najera, 519 F.3d at 511; United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). We need not decide here whether “minor” as used in the enumerated category of “sexual abuse of a minor” means those under sixteen versus those under seventeen. We can say that “minor” in this context does not include all persons under eighteen—namely, seventeen-year olds. We are mindful that in many contexts a minor is defined as a person under eighteen. See Black’s Law Dictionary 997 (6th ed. 1990) (“In most states, a person is no long a minor after reaching the age of 18 . . . .”). However, in the unique crime-of-violence context, we must follow the Taylor common-sense approach.

Of course, under the Taylor approach, a sixteen-year-old is not a "minor." But that's not the way the court saw things in Ayala or Najera-Najera. As you can see, there's some inconsistency in this line of cases.

Another thing worth mentioning: error preservation. Munoz objected to the 16-level COV enhancement in the district court, but the court of appeals applied plain error review. Why? In the district court, Munoz "argued that the California statute improperly criminalizes consensual conduct." He didn't make the age-related argument until he got to the court of appeals. Consequently, plain error review. (It worked out in the end, because the court found application of the 16-level enhancement to be plain error.)

This isn't the first time that the Fifth Circuit has applied plain error review when a defendant raised an issue below, but made a different argument on appeal than in the district court. So keep in mind that a general objection to a COV enhancement may not be sufficient to preserve the issue for appeal. And even a specific objection arguing that the enhancement doesn't apply because of A will apparently not preserve the issue if your argue on appeal that the enhancement doesn't apply because of B.