United States v. Serrano-Mercado , 784 F.3d 838 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1730
UNITED STATES OF AMERICA,
Appellee,
v.
WILSON SERRANO-MERCADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Lipez, and Barron,
Circuit Judges.
Raul S. Mariani-Franco for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
were on brief, for appellee.
May 1, 2015
BARRON, Circuit Judge. Wilson Serrano-Mercado contends
the District Court made two mistakes in sentencing him for a
federal gun crime. First, he argues the District Court erred in
counting more than one of his prior convictions for Puerto Rico
criminal offenses as a conviction for a "crime of violence" under
the Sentencing Guidelines. Second, he contends the District Court
gave too much significance under those same guidelines to the
existence of an obliterated serial number on the frame of the
firearm he was convicted of possessing, when the serial number on
the slide was unaltered. We hold the District Court did not commit
reversible error in either respect and thus affirm the sentence
imposed.
I.
In District Court, Serrano pled guilty to being a felon
in knowing possession of a firearm -- a 9mm pistol. 18 U.S.C.
§§ 922(g)(1), 924(a)(2). The Sentencing Guidelines specify a
suggested sentencing range for such a conviction. U.S.S.G.
§§ 2K2.1, 5A. Serrano rests his challenge to his sentence on the
two errors that he claims the District Court made in identifying
the proper range. And thus, it is helpful to provide some
background about how, in general, such ranges are identified, and
then how, in particular, the range was identified here.
Under the guidelines, two variables provide the basis for
the sentencing range. The first variable is called the offense
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level. It is expressed in terms of a point score. Id. § 5A. The
score is a function, initially, of what is known as the base
offense level. Id. § 2 introductory cmt. The base offense level
is generally calculated with reference to the nature of the crime
of conviction. The guidelines then add points to or subtract
points from the base offense level for various enhancing or
mitigating factors that may or may not be present in a defendant's
case. The result is the total offense level.
The second variable is a defendant's criminal history
category. Id. § 5A. The guidelines assign criminal sentences
certain point values. Id. § 4A1.1. These points are then
translated into one of six criminal history categories, represented
by the use of a Roman numeral from I to VI. Id. § 5A. The more
severe the criminal history a defendant has on the basis of the
points assigned, the higher the category.
On the basis of these two variables, the guidelines then
set forth suggested sentencing ranges in a chart. Id. One axis of
the chart lists possible total offense levels. The other axis
lists possible criminal history categories. At the intersection of
every possible value for these two variables, the chart sets forth
a suggested range of sentences.
Before actually imposing a sentence, a district court
often receives input from various actors about how to calculate the
defendant's guidelines sentencing range. If there is a plea
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agreement, as there was here, the agreement will often recommend a
range. And, in setting forth that recommendation, the agreement
will often set forth certain facts that bear on the calculation of
the base offense level, the total offense level, and the criminal
history category. See Fed. R. Crim. P. 11(c)(1).
The district court will also have the benefit -- as,
again, was true here -- of a probation officer's pre-sentence
report, which is based on that officer's investigation. That
report, too, will set forth facts bearing on the sentencing
guidelines calculation. And that report may, in light of those
facts, suggest a calculation different from the plea agreement.
See Fed. R. Crim. P. 32(d).
The district court need not accept the calculations in
the plea agreement or the pre-sentence report. Nor must the
district court choose a sentence that falls within the range the
district court's own guidelines calculation yields, though the
sentence must comply with additional substantive and procedural
limitations. See 18 U.S.C. § 3553; United States v. Booker, 543
U.S. 220, 245, 261 (2005). But if the district court errs in
making the guidelines calculation, the sentence may be reversed
even though that calculation does not directly compel the sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Tavares, 705 F.3d 4, 25 (1st Cir. 2013). And that is what Serrano
argues must happen here.
-4-
In this case, the plea agreement recommended a sentencing
range tied to a base offense level of 22. The agreement made that
calculation because it stated that Serrano had been convicted of
one prior felony for a "crime of violence" at the time of his
unlawful firearm possession. U.S.S.G. §§ 2K2.1(a)(3), 4B1.2(a).
The plea agreement did not identify any of Serrano's prior
convictions. The plea agreement thus did not specify which one
qualified as the crime of violence that warranted that base offense
level of 22. The plea agreement's calculation also did not include
a four-point increase under the guidelines' enhancement that
applies when the firearm involved in a felon-in-possession charge
has "an altered or obliterated serial number." Id. § 2K2.1(b)(4).1
The probation officer's pre-sentence report, as amended,
departed from the plea agreement's guidelines calculation. And it
did so in two respects.
First, the amended pre-sentence report suggested a base
offense level of 24, rather than 22. The report used that higher
base offense level because it stated that Serrano actually had more
than one prior felony conviction for a "crime of violence." Id.
§§ 2K2.1(a)(2), 4B1.2(a). The report did not expressly identify
which of Serrano's prior convictions qualified as a crime of
1
The plea agreement also included a clause waiving Serrano's
appeal rights, but only if the court accepted the plea's sentencing
recommendation. Because the court did not, the government concedes
that the plea agreement's appeal waiver does not apply.
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violence. The report thus did not identify the ones the report
relied upon in setting the base offense level at 24.
The report did list, however, a number of prior
convictions for Serrano. These convictions included a 2006 Puerto
Rico conviction for assault that the parties both appear to agree
does qualify as a conviction for a crime of violence. These
convictions also included a 2005 Puerto Rico conviction under
Article 3.1 of Law 54, Puerto Rico's Domestic Abuse Prevention and
Intervention Act, P.R. Laws Ann. tit. 8, § 631, which the
government on appeal now contends also qualifies but which Serrano
argues does not. And, finally, the list included an earlier 2004
conviction that the government does not argue qualifies.
The second respect in which the pre-sentence report
differed from the plea agreement concerned the serial-number
enhancement. Unlike the plea agreement, the report concluded the
enhancement did apply. The report thus increased its calculation
of the total offense level by four points. U.S.S.G. § 2K2.1(b)(4).
The District Court adopted the pre-sentence report's
recommendations regarding the guidelines calculation. The District
Court stated Serrano had "two domestic violence convictions and one
assault conviction which meet the guidelines criteria for crimes of
violence." The District Court thus started from a base offense
level of 24 because it had found, contrary to the representation in
the plea agreement, that Serrano had been convicted of more than
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one offense that qualified as a crime of violence. The District
Court then applied the four-point serial-number enhancement.
Finally, and consistent with the plea agreement and the pre-
sentence report, the District Court subtracted three points for the
defendant's acceptance of responsibility, U.S.S.G. § 3E1.1 cmt. 3,
due to the plea.
The District Court thus arrived at a total offense level
of 25. The District Court also determined Serrano had a criminal
history category of V. These calculations then combined to set
Serrano's guidelines sentencing range between 100 and 125 months.
The District Court imposed a sentence at the lower bound of that
range: 100 months.
On appeal, Serrano argues for the first time that his
base offense level should have been 22, not 24.2 He contends that
2
Serrano argues on appeal that he raised an objection below,
but we conclude otherwise. Serrano did object to the first pre-
sentence report's "total adjusted offense level [of] 23 when the
plea agreement establishes a total offense level of 19." But
nothing in the record indicates that this general objection to the
unamended pre-sentence report's total offense level was an
objection to counting the 2005 felony under Article 3.1 -- or any
other prior offense -- as an additional crime of violence for
purposes of determining the base offense level. Indeed, the pre-
sentence report's addendum relates that when, following Serrano's
lodging that general objection, the probation officer explained his
view that Serrano had two prior convictions for crimes of violence,
Serrano did not offer an objection or contrary argument. And,
finally, Serrano did not object when the District Court stated at
sentencing that it was applying the base offense level of 24
because Serrano had at least two prior convictions for a crime of
violence, including not only one for assault but two for domestic
violence.
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the lower base offense level is the right one because his 2006
felony conviction for assault is the only one of his prior
convictions that qualifies as a crime of violence under the
guidelines. Serrano also argues, as he did below, that the serial-
number enhancement cannot apply because even though one serial
number on the gun's frame was obliterated, another serial number on
the slide remained unaltered. For that reason, he contends the
District Court erred in adding four points to his total offense
level.3
If the District Court had used a base offense level of 22
and had not applied the serial-number enhancement, then, after the
deduction for acceptance of responsibility, Serrano's total offense
level would have been 19. With his criminal history category of V,
his guidelines sentencing range would have been 57 to 71 months in
prison. U.S.S.G. § 5A. Under the District Court's actual
guideline calculation, by contrast, the range was 100- to 125-
months.
3
Serrano's opening brief referenced a third potential ground
for challenging the sentence: ineffective assistance of counsel.
But Serrano raised this argument only in the statement of issues on
appeal and did not advance the argument in the body of the brief.
His reply brief made clear that the ineffective-assistance argument
was erroneously added to the statement of issues in the first
brief. We thus do not address it further.
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II.
Serrano's first challenge is to the District Court's
conclusion that his base offense level was 24 because he had two
prior felony convictions that counted under the guidelines as
convictions for a "crime of violence." We start by describing how
we usually decide whether a prior conviction is for a crime of
violence. We then explain the problem with using that same
approach here, given Serrano's failure to preserve the argument by
properly raising it below.
A.
Ordinarily, we use what the precedents call a
"categorical approach" to decide if a defendant's prior felony
conviction was for a crime of violence. United States v. Jonas,
689 F.3d 83, 86 (1st Cir. 2012). Under this approach, the
conviction counts as one for a crime of violence if the elements of
the conviction fit the guidelines' definition of a crime of
violence. Id. at 86-87. Otherwise, the conviction does not count,
no matter what the facts show the defendant actually did in
committing the crime -- even, that is, if those facts show he acted
violently. Id. at 86.
This focus on the elements of the conviction -- rather
than the underlying conduct -- fits with the text of the Sentencing
Guidelines, which makes the base offense level for the felon-in-
possession offense turn on prior "convictions of . . . a crime of
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violence," not on prior conduct. U.S.S.G. 2K2.1(a)(2),(3)
(emphasis added); see Descamps v. United States, 133 S. Ct. 2276,
2287 (2013). And this approach also ensures present sentences are
not based on documents that could be quite old, might be uncertain
or disputed, and may contain factual allegations the defendant did
not contest at the time for any of a number of reasons unrelated to
the accuracy of the allegations. Descamps, 133 S. Ct. at 2289.
In some cases, though, this categorical approach runs
into a potential obstacle. That obstacle arises when the
conviction is for a crime set forth in a statute that is
"divisible." A divisible statute is one that "sets out one or
more elements of the offense in the alternative -- for example,
stating that burglary involves entry into a building or an
automobile." Id. at 2281. The problem such a statute poses is
that these alternative elements may create distinct offenses, each
of which may or may not itself be a crime of violence.
To deal with this wrinkle, we employ what the precedents
call -- not surprisingly -- a "modified categorical approach."
Under this approach, we look to limited materials, often called
Shepard documents, from the convicting court, such as charging
documents, plea agreements, plea colloquies, and jury instructions.
Id. at 2281, 2284 (relying on Shepard v. United States, 544 U.S. 13(2005)). We do so not to determine the conduct the defendant
engaged in while committing an offense, as such conduct is of no
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relevance. We instead inspect these materials in order to identify
(if such identification is possible) the actual offense of
conviction from among the distinct offenses set forth in a
divisible statute. Id. at 2281.
Once we identify the distinct offense of conviction by
consulting the materials, we then return to the categorical
approach. We consider whether the elements of that distinct
offense meet the definition of a "crime of violence."
All of which brings us to the final stage in this
process: the analysis of how the elements of the offense of
conviction match up with the guidelines' definition of a "crime of
violence." A conviction for an offense qualifies as a conviction
for a crime of violence if the elements of the underlying offense
satisfy either (or both) of two clauses set forth in the relevant
guideline and that offense is punishable by more than a year in
prison. U.S.S.G. § 4B1.2(a); see also U.S.S.G. § 2K2.1 cmt. 1
(cross-referencing the definition in § 4B1.2 to determine the base
offense level of the felon-in-possession crime).4
The guideline's first clause provides that a crime of
violence is "any offense under federal or state law . . . that
4
"This definition is nearly identical to the definition of
a 'violent felony' contained in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B). Recognizing this resemblance,
courts consistently have held that decisions construing one of
these phrases generally inform the construction of the other."
Jonas, 689 F.3d at 86.
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. . . has as an element the use, attempted use, or threatened use
of physical force against the person of another." U.S.S.G.
§ 4B1.2(a)(1). This so-called "force clause" requires that the
offense of conviction include as an element "violent force," that
is, "force capable of causing physical pain or injury to another
person." Johnson v. United States, 559 U.S. 133, 140 (2010). If
the offense of conviction does not involve the "use, attempted use,
or threatened use" of such violent physical force -- as may be the
case with an offense of common-law battery, whose force element can
"be satisfied by even the slightest offensive touching" -- then
that offense does not meet the requirements of the force clause.
Id. at 139.
The guideline's second clause provides that a prior
felony conviction qualifies as a crime of violence if it is for
"any offense under federal or state law . . . that . . . is
burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another." U.S.S.G.
§ 4B1.2(a)(2). Even if an offense does not fall under the force
clause, therefore, that offense qualifies as a crime of violence if
it matches one of these enumerated crimes or otherwise satisfies
the requirements of the guideline's so-called "residual clause."
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B.
In applying this framework, we begin by noting the
parties agree that Serrano's 2006 conviction for assault under
Puerto Rico law does count as a conviction for a crime of violence.
We also note that Serrano does not dispute that the District Court
counted the 2005 conviction for domestic violence under Article 3.1
in finding that Serrano had more than one conviction for a crime of
violence. Serrano's challenge to the District Court's use of the
base offense level of 24 can succeed, therefore, only if Serrano
can show the District Court erred in counting that Article 3.1
conviction. Otherwise, there would be at least two such qualifying
convictions. We thus now turn to the propriety of the District
Court's finding on that point.
The first thing to note is that Article 3.1 is a
divisible statute. It covers "[a]ny person who employs physical
force or psychological abuse, intimidation or persecution against
the person of [a domestic partner] . . . to cause physical harm to
the person, the property held in esteem by him/her, . . . or to
another's person, or to cause grave emotional harm . . . ." P.R.
Laws Ann. tit. 8, § 631 (emphasis added). The statute thus sets
out multiple constellations of elements in the alternative. One
set of elements requires the use or threat of "physical force."
The others require "psychological abuse, intimidation or
persecution."
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Faced with such a statute, we ordinarily would apply the
modified categorical approach. Using that approach, we first would
try to determine, from the relevant documents, whether Serrano's
prior conviction under Article 3.1 was for an offense predicated on
the "physical force" element or instead for an offense predicated
on the other elements set forth in that statute. Then, after
having identified the actual offense of conviction, we would
determine whether that offense met the guideline's requirements for
a crime of violence.
But we are frustrated in doing so here. Serrano made no
specific challenge to the pre-sentence report's contention that the
list of his prior convictions included two felonies that were for
a crime of violence. That was so even though that list included a
conviction under Article 3.1 but did not specify further the
particular offense under that law that had resulted in that
conviction. At sentencing, moreover, the District Court simply
identified as qualifying convictions the one for assault and the
two for domestic violence. Yet Serrano did not complain that the
District Court, in so finding, did not consult the limited set of
documents from the court of conviction that would have helped it
determine the distinct elements of the offense that provided the
basis for Serrano's actual 2005 conviction under Article 3.1. In
consequence, we have no such documents to review as part of the
record on appeal.
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As a legal matter, moreover, Serrano's failure to object
in the District Court affects the standard of review. Rather than
reviewing de novo whether the conviction under Article 3.1 counts
as a conviction for a crime of violence, see Jonas, 689 F.3d at 86,
we may review only for plain error, United States v.
Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011). And that
standard is strict. Serrano can satisfy it "if, and only if, [he]
succeeds in showing '(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'" United
States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Of course, if it were clear or obvious that none of
Serrano's prior felony convictions -- save for the 2006 one for
assault -- could qualify as one for a crime of violence, then the
defendant's task on appeal might not be so daunting, despite the
strict standard of review. But because Serrano was convicted under
Article 3.1, and Article 3.1 is a divisible statute, we could come
to that conclusion only if we were confident that none of the
distinct offenses set forth in that law would so qualify. And, as
we now explain, we are not of that view, given how we interpret one
portion of Article 3.1.
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C.
The case for concluding that at least one offense under
Article 3.1 qualifies as a crime of violence is strong. Among the
divisible offenses set forth in that statute is one that covers
"[a]ny person who employs physical force . . . to cause physical
harm" to a protected person. P.R. Laws Ann. tit. 8, § 631.
In making physical force an element, the text of Article
3.1 suggests that something more than a mere non-consensual
touching is required to satisfy that element. Instead, the text
requires the physical force be intended to "cause physical harm."
The Puerto Rico Supreme Court has also interpreted the physical-
force element of Article 3.1. And consistent with the text, that
court has construed that element to "prohibit[] . . . physical
abuse," Pueblo v. Ayala García, 186 P.R. Dec. 196, 213 (2012)
(translation provided by stipulation of parties through letter
under Federal Rule of Appellate Procedure 28(j)), and stated that
"any degree of force is sufficient to configure the offense if
. . . employed with the intention of causing some damage," id.; see
also Pueblo v. Roldán López, 158 P.R. Dec. 54, 61 (2002).
Taken together, the text of Article 3.1 and the Puerto
Rico Supreme Court's interpretation of it strongly suggest the
statute's physical-force element involves the kind of violent force
"capable of causing physical pain or injury to another person."
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Johnson, 559 U.S. at 140.5 And that is the kind of force required
by the crime of violence sentencing guidelines' force clause. Id.To the extent any uncertainty remains, moreover, we do
not believe it is so great as to make it clear or obvious that the
physical-force offense set forth in Article 3.1 could not qualify
as a crime of violence under the guideline. Yet it is just such a
clear or obvious exclusion from the guideline that Serrano must
demonstrate given that our review is for plain error.
Serrano argues, however, that he still should win because
it is at least possible he was convicted of an offense under
Article 3.1 that does not qualify as a crime of violence. And that
is because, he contends, that statute is divisible and the elements
of "psychological abuse, intimidation or persecution" plainly do
not set forth an offense that is a crime of violence.
Serrano rests that fall-back contention on more than his
assertion that those particular elements, by their plain terms, do
not require "physical force" or a threat of such force. He also
argues those elements establish distinct offenses that are too
unlike the other crimes enumerated in the residual clause of the
5
We thus need not address whether the physical-force offense
qualifies as a crime of violence under the guideline's residual
clause, which sweeps in offenses that "involve[] conduct that
presents a serious potential risk of physical injury to another."
U.S.S.G. § 4B1.2(a)(2). We note that the Supreme Court has
recently asked for briefing on the question whether identical
language in a distinct criminal statute, the Armed Career Criminal
Act, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague.
Johnson v. United States, 135 S. Ct. 939 (2015).
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crime of violence guideline to be swept up by it. Cf. Begay v.
United States, 553 U.S. 137, 142 (2008) (holding that the
enumerated crimes preceding the residual clause "illustrate the
kinds of crimes that fall within the statute's scope" and
"indicate[] that the statute covers only similar crimes"). Serrano
then closes out this argument by contending that, without documents
that show which elements in Article 3.1 supported his actual
conviction under that law, there is no way to know whether that
conviction qualifies as one for a crime of violence. And, in the
face of that claimed uncertainty, he argues, it is plain error to
hold that he was convicted of such a qualifying crime.
The government responds by arguing that uncertainty about
what such documents might show is beside the point. The government
argues that, in fact, all offenses described in Article 3.1 are
crimes of violence, or, at least, that we should view them as such
on review for plain error. And the government bases that
contention on the residual clause of the crime of violence
guideline, which, the government contends, encompasses all of those
offenses. Or, at least, the government contends, the residual
clause of the guideline does not clearly or obviously exclude them,
whether they include the physical-force element or not.
But we do not need to resolve this dispute over how to
characterize all parts of Article 3.1. Because our review is only
for plain error, it is enough that we have determined that a
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conviction under the physical-force element of Article 3.1 would
likely qualify as a crime of violence. For as we next explain, our
precedents show that Serrano may not benefit from having left us
completely in the dark (through his failure to object below) about
what the documents relating to the conviction under Article 3.1
would reveal about whether he was convicted of an offense that
contains the physical-force element or instead some other offense
that does not require proof of that element.
D.
We confronted a situation very much like this in United
States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006). There,
the defendant also challenged his sentence on appeal because it
rested in part on a conviction under a divisible statute, one
portion of which contained elements that qualified for a guideline
enhancement -- there, for drug trafficking -- and another of which
did not. Id. at 37. And there, too, the defendant had not
challenged either the pre-sentence report's characterization that
the conviction was for an enhancement-qualifying offense, or the
district court's guideline calculation that tracked the pre-
sentence report. As a result, there were no records available on
appeal to show which of the divisible statute's distinct offenses
was in fact the offense of conviction. Id. at 40.
After finding the defendant's failure to object below, in
context, actually constituted waiver, id. at 38 -- a claim that the
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government does not advance here -- we went on to consider in dicta
whether the application of the drug-trafficking guideline
enhancement should be reversed under the plain error standard, id.
at 38-40. And we concluded it should not. Id. We explained the
District Court committed no error in accepting the unchallenged
characterization, but that, even if the District Court had erred in
doing so, reversal was still not justified. Id.In consequence of the defendant's failure to object
below, we explained, "we [we]re left to guess" the "unknown
variable" of "the contents of the record of the prior conviction."
Id. at 40. And because we were left to guess, "there [wa]s no way
for the appellant to show a reasonable probability that he would be
better off from a sentencing standpoint had the district court not
committed the claimed . . . error." Id. For that reason, we
concluded the defendant could not meet the heightened prejudice
showing plain error review requires. Id.We then relied on Turbides-Leonardo's reasoning in
holding there to be no prejudice in United States v. Davis, 676
F.3d 3 (1st Cir. 2012), our last binding precedent on the issue.
In Davis, the defendant challenged his sentence as relying on a
prior conviction under a divisible assault statute, one portion of
which defined a crime of violence and another portion of which did
not. Id. at 7-8. Davis did not object when the prosecutor and the
pre-sentence report characterized his conviction as qualifying as
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a crime of violence, nor did he object when the District Court
characterized the conviction similarly and relied on it in crafting
the sentence. Id. at 5-6. And so we reviewed only for plain
error.
We held that, whether or not the District Court clearly
erred by not demanding the documents of conviction before making
the crime-of-violence determination, the defendant bore the burden
of showing "a reasonable probability that, but for the error, the
district court would have imposed a different, more favorable
sentence." Id. at 10 (quoting Turbides–Leonardo, 468 F.3d at 39).
We then held, relying expressly on Turbides-Leonardo's reasoning
about the need to show prejudice, that the defendant did not
satisfy that burden because he failed to point to any reason to
conclude that an examination of the documents would indicate the
conviction was for an offense that does not qualify as a crime of
violence. Id.Here, just like in Davis, the District Court had before
it a pre-sentence report that claimed the defendant had a second
prior conviction that qualified for the guideline enhancement. And
yet, again, like in Davis, the defendant did not contest that
representation, even though the defendant informed the judge
through counsel that he had reviewed the pre-sentence report
containing that information.
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Indeed, although the defendant made a general objection
to the probation office regarding the total offense level used in
the first version of the pre-sentence report, the record does not
indicate that Serrano raised a more specific objection to the
probation office regarding the base offense level and the number of
his prior convictions for a crime of violence. And, the record
further shows, he failed to do so even after the office clearly
explained its view that Serrano had two such prior convictions.
Nor did the defendant raise an objection in his
sentencing memorandum, or inform the District Court at sentencing
that it believed it had erred in concluding -- as it plainly stated
in announcing the sentence -- that, in addition to the 2006
conviction for assault, there was another qualifying conviction
that was for domestic violence. The District Court thus had no
Shepard documents before it -- nor any request that it obtain and
review such documents -- that might cast doubt on either the pre-
sentence report's assertion that the enhancement applied or on the
defendant's apparent agreement with that assertion. Accordingly,
we have no such Shepard documents before us now. And thus, as
Davis -- by incorporating Turbides-Leonardo's reasoning --
instructs, we have no basis for concluding it is reasonably
probable that those documents would show Serrano was convicted of
an offense under Article 3.1 that would not qualify as a crime of
violence.
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In fact, even now, on appeal, Serrano still does not
assert he was not convicted under Article 3.1 of the offense
involving physical force, nor does he request to supplement the
record to include the appropriate documents of conviction on the
ground that they would redound to his benefit. See United States
v. Zubia-Torres, 550 F.3d 1202, 1209 n.3 (10th Cir. 2008)
(declining to consider "the effect if counsel had proffered the
relevant documents on appeal"). He contends only that it cannot be
certain on this record whether he was so convicted and that, in any
event, the "physical force" offense clearly or obviously does not
qualify -- a contention we have already rejected.
Therefore, as in Turbides-Leonardo and Davis, we conclude
Serrano has not shown the necessary prejudice, even assuming the
District Court erred in not independently seeking out the records
of conviction.6 This conclusion comports with the decisions of
6
Because we rely on the defendant's failure to show the
necessary prejudice in this case, we need not address whether it
was clear and obvious error for the District Court to fail sua
sponte to demand and evaluate documents relating to the conviction.
Other circuits have addressed this issue. Compare United States v.
Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010) (characterizing
lack of objection as factual stipulation, and finding no error),
with, e.g., United States v. Castillo-Marin, 684 F.3d 914, 921 (9th
Cir. 2012) (finding clear and obvious error). We have held that a
failure to demand and evaluate such documents was not clear and
obvious error where the defendant not only failed to object but
also "apparent[ly] acquiesce[d]" in his sentencing memorandum "to
the characterization of the prior convictions as crimes of
violence" by stating that he "technically qualifies" for the
enhancement. Ríos-Hernández, 645 F.3d at 463. But we held that it
was clear and obvious error in the circumstances addressed by
United States v. Torres-Rosario, 658 F.3d 116 (1st Cir. 2011), and
-23-
several sister circuits in similar plain-error cases. See
Zubia-Torres, 550 F.3d at 1208-10; United States v. Williams, 358
F.3d 956, 966-67 (D.C. Cir. 2004); United States v. Ransom, 502 F.
App'x 196, 198-201 (3d Cir. 2012) (unpublished). And while we are
aware that other circuits have vacated sentences and remanded after
finding plain error in arguably analogous circumstances, they did
not, in so doing, address the lack-of-prejudice argument that the
other circuits just mentioned have relied upon and that Davis
requires us to find determinative here. See United States v.
Reyes, 691 F.3d 453, 460 (2nd Cir. 2012) (concluding, without
explanation, that the district court's failure to sua sponte
investigate the documents of conviction led to an erroneously
elevated offense level); United States v. Castillo-Marin, 684 F.3d
914, 927 (9th Cir. 2012) (same); United States v. Pearson, 553 F.3d
1183, 1186 (8th Cir. 2009) (same), partially overruled on other
grounds by United States v. Tucker, 740 F.3d 1177, 1184 (8th Cir.
2014); United States v. Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.
2005) (vacating and remanding without discussing prejudice).
We do not say, however, that there are no circumstances
in which reversal in a related case, involving different facts,
we came to a similar conclusion in dicta in our recent opinion in
United States v. Ramos-González, 775 F.3d 483, 507 (1st Cir. 2015),
on which Serrano relies. We note that we also suggested in Ramos
that we would have found prejudice to the defendant, but in doing
so we did not address the contrary holding on that point of Davis
(based on the reasoning of Turbides-Leonardo), id., which, as we
have explained, controls this case.
-24-
might be warranted. In United States v. Torres-Rosario, 658 F.3d
110 (1st Cir. 2011), we held the District Court committed
prejudicial plain error in characterizing the conviction at issue
in that case as a crime of violence, id. at 116. But there, under
First Circuit precedent, binding at the time of sentencing, it was
clear from the charging documents in the record that the conviction
qualified categorically as a crime of violence. Id. at 115. The
defendant thus understandably did not contest the characterization
or assert that the other documents of conviction would be relevant
to whether the conviction was in fact qualifying, and indeed
stipulated that his convictions qualified. Id. at 115-16.
By the time of the appeal, however, the First Circuit had
changed course in response to a recent case from the Supreme Court.
We had made clear that the type of conviction at issue did not
necessarily qualify categorically as a crime of violence and,
therefore, that further inquiry into the documents of conviction
under the modified categorical approach would be appropriate. Id.
at 115. For that reason, the un-objected-to characterization of
the conviction in Torres-Rosario could not have been understood as
an unchallenged agreement to a factual characterization of the
conviction.
Here, by contrast, as in Turbides-Leonardo, no First
Circuit precedent, later overruled, established at the time of
sentencing that the conviction for the underlying offense
-25-
categorically qualified as a crime of violence. And so the
defendant's failure to contest the pre-sentence report's and the
District Court's characterization of those prior convictions is, as
Davis held in applying Turbides-Leonardo, key to our assessment
that he has not met his burden of showing prejudice. And while
Davis is itself a case with facts like Torres-Rosario, that does
not make its express adoption of Turbides-Leonardo's prejudice
analysis any less controlling in a case like this one, which
mirrors the facts in Turbides-Leonardo rather the facts in Torres-
Rosario. We thus do not address how Davis and Torres-Rosario's
analysis of the prejudice issue should be reconciled in a case
presenting the distinct facts presented in those cases.
III.
Under the Sentencing Guidelines, the offense level
increases by four points if the firearm involved in a felon-in-
possession conviction "had an altered or obliterated serial
number." U.S.S.G. § 2K2.1(b)(4)(B). Serrano's pistol had an
obliterated serial number on the frame and an unaltered serial
number on the slide. The District Court therefore applied the
four-point serial-number enhancement.
Serrano argues, however, that the District Court erred
because the serial number, though obliterated in one place,
remained unaltered elsewhere on the gun. He contends that the
guideline could not have been intended to apply in such
-26-
circumstance because the serial number itself remains perfectly
visible, albeit in only one place rather than two.
Whether Guideline § 2K2.1(b)(4)(B)'s four-point serial-
number enhancement may apply in this type of case is a question of
law (and, apparently, a question of first impression). Because
Serrano properly preserved this argument below, our review is de
novo. See United States v. Maldonado, 614 F.3d 14, 17 n.1 (1st
Cir. 2010) ("Abstract legal issues under the guidelines are
reviewed de novo . . . .").
Like the District Court, we conclude the enhancement does
apply in Serrano's case. The text of the guideline requires only
"an altered or obliterated serial number," U.S.S.G.
§ 2K2.1(b)(4)(B) (emphasis added). The guideline's text does not
require that all of the gun's serial numbers be so affected. And
here, the complete defacement of the serial number on the frame of
the firearm resulted in the required obliteration.
Moreover, this plain reading of the text -- that the
obliteration of "a[]" serial number is enough -- accords with the
intent of Guideline § 2K2.1(b)(4), which is "to 'discourag[e] the
use of untraceable weaponry.'" United States v. Carter, 421 F.3d
909, 914 (9th Cir. 2005) (alteration in original) (quoting United
States v. Seesing, 234 F.3d 456, 460 (9th Cir. 2001)). Applying an
enhancement for firearms that have a single totally obscured serial
number may serve as a deterrent to tampering, even when incomplete.
-27-
And, relatedly, the single-obliteration rule could facilitate
tracking each component that bears a serial number, given that
various parts of firearms may be severable.
And precedent is not to the contrary. We have held the
mere alteration of a serial number violates 18 U.S.C. § 922(k), a
related criminal statute, without regard to whether such alteration
is severe enough to prevent that same serial number from being
read, United States v. Adams, 305 F.3d 30, 34 (1st Cir. 2002); see
also Carter, 421 F.3d at 915-16 (applying Adams to interpret
Guideline § 2K2.1(b)(4)(B)). So, too, we conclude the text of this
guideline is best construed -- consistent with the plain meaning of
its words -- to trigger the enhancement when the serial number on
the frame of a firearm is obliterated even if other serial numbers
on the firearm, like the one left intact on the slide of this
weapon, are unaltered.7 We thus do not believe the District Court
erred in applying the four-point enhancement.
IV.
For these reasons, we affirm the District Court's
sentence against the challenges raised in this appeal.
-Concurring Opinion Follows-
7
We do not need to reach the further issue whether the
guideline would apply if the serial number on the frame were
unaltered but a serial number on the slide or other part of the
firearm were altered or obliterated. See United States v.
Romero-Martinez, 443 F.3d 1185 (9th Cir. 2006) (holding the
guideline applicable in such a case).
-28-
LIPEZ, Circuit Judge, concurring. A defendant whose
sentence is enhanced because of violent crimes he committed in the
past will face substantially more time in prison than someone
without a record of violence. Although I do not question
sentencing enhancements for defendants with violent criminal
histories, we must ensure that aggravated penalties are imposed
only when the criminal histories justify them. Here, appellant
challenges the district court's unsupported assumption that his
conviction under a "divisible" statute was in fact for a crime of
violence. I reluctantly agree with my colleagues that First
Circuit precedent requires us to reject appellant's claim.
However, our case law on how to evaluate plain error in this
context is inconsistent, and it cannot be reconciled with the
Supreme Court's decision in Shepard v. United States, 544 U.S. 13(2005). I therefore urge our court to rehear this case en banc so
that we may closely examine, and fairly resolve, an important and
complex question of law: how does the government's burden to
establish that a conviction under a divisible statute qualifies as
a predicate offense intersect with a defendant's burden to show
plain error?
Under the analysis described in the majority opinion,
appellant can satisfy the prejudice prong of the plain error test
only if he proves that, but for the sentencing court's improper
reliance on his Article 3.1 conviction, it is reasonably probable
-29-
that he would have received a lesser sentence. As a practical
matter, that approach switches to defendants the obligation the
Supreme Court imposed on the government to produce specific court
records proving that a conviction under a divisible statute
qualifies as a predicate offense. In so doing, the approach
creates a real risk of longer prison terms than are justified by
defendants' criminal histories. As other circuits have recognized,
however, that potential harm can be easily avoided, with minimal
burden on the sentencing court. When the court erroneously relies
on a conviction whose character cannot be determined without
Shepard-approved documents, the defendant's sentence must be
vacated and the case remanded for resentencing. The government
will then ordinarily have the opportunity to substantiate that the
conviction was for an offense that qualifies as a predicate for
enhancement. If the government cannot do so, the enhancement is
impermissible.
As I explain below, this modest relief follows as a
matter of logic and fairness from correct application of the plain
error test in this context. Indeed, with a full understanding of
the underlying principles, one can only conclude that the prejudice
analysis articulated in our precedent -- requiring the defendant to
disprove his eligibility for a sentence enhancement -- is
misguided. Our court should convene en banc to remedy this serious
problem.
-30-
I.
A. Legal Background
As my colleagues explain well, when a court seeks to
enhance a defendant's sentence based on a prior conviction under a
"divisible" statute -- i.e., where the statute criminalizes
different types of conduct, only some of which may support the
enhancement -- the court applies the so-called modified categorical
approach to determine which version of the crime underlies the
defendant's conviction. Descamps v. United States, 133 S. Ct.
2276, 2283-84 (2013); see also United States v. Ramos-González, 775
F.3d 483, 505 (1st Cir. 2015) (describing a "divisible statute" as
one that "sets forth one or more elements of a particular offense
in the alternative" (quoting United States v. Fish, 758 F.3d 1, 6
(1st Cir. 2014)). Frequently, as in this case, the enhancement
depends on whether the challenged prior conviction was for a "crime
of violence."8 See, e.g., Ramos-González, 775 F.3d at 504-05. If
a statute criminalizes both violent and non-violent conduct, "the
sentencing court is permitted to consult a limited set of 'approved
records' to determine which . . . provided the basis for the
conviction." Id. at 505 (quoting United States v. Carter, 752 F.3d
8An offense qualifies as a crime of violence if it is
punishable by more than one year of imprisonment and either "(1)
has as an element the use, attempted use, or threatened use of
physical force against the person of another," or (2) is one of
several enumerated crimes not relevant here, "or otherwise involves
conduct that presents a serious potential risk of physical injury
to another." U.S.S.G. § 4B1.2(a).
-31-
8, 19 (1st Cir. 2014)). The permissible records consist primarily
of charging documents, plea agreements, transcripts of plea
colloquies, jury instructions, and verdict forms. Id.; see also
Shepard, 544 U.S. at 26 (describing the acceptable records, often
described as "Shepard materials"). If the records show that the
defendant was not convicted of a crime containing the requisite
elements of violence -- or if the records do not reveal the nature
of the crime -- the conviction may not be used to enhance his
current federal sentence. See United States v. Dávila-Félix, 667
F.3d 47, 57 (1st Cir. 2011).
At sentencing, the burden to produce the documents that
reveal (or not) the nature of the proffered conviction is on the
government. Dávila-Félix, 667 F.3d at 55 ("The Government bears
the burden of establishing that a prior conviction qualifies as a
predicate offense for sentencing enhancement purposes."). Hence,
if the government does not demonstrate that the defendant's
conviction was for a variant of the crime that satisfies the crime-
of-violence definition, it is error for the court to treat that
conviction as a predicate for sentencing enhancement purposes.
This is so whether the documents show the crime to be of the non-
violent type or if the documents do not reveal the particular
version of the crime underlying the conviction. See United States
v. Davis, 676 F.3d 3, 8 (1st Cir. 2012) ("If, after examination of
these permissible documents, 'it is impossible to tell whether the
-32-
defendant was convicted of a violent or non-violent offense,' the
conviction may not serve as a predicate offense." (quoting United
States v. Holloway, 630 F.3d 252, 257 (1st Cir. 2011)).
The complexity arises if the defendant fails to challenge
the sentencing court's reliance on such a conviction, and raises an
objection for the first time on appeal. We treat such a claim as
forfeited and give it only plain error review.9 Under that
standard, the defendant "bear[s] the 'heavy burden' of showing that
the error was clear or obvious, and that it both affected his
substantial rights and 'seriously impaired the fairness, integrity,
or public reputation of judicial proceedings.'" Ramos-González,
775 F.3d at 499 (quoting United States v. Ramos-Mejía, 721 F.3d 12,
14 (1st Cir. 2013)).
To perform this inquiry, we need to identify the "error"
before we can determine if it is clear or obvious, and prejudicial.
Focusing on the Puerto Rico statute under which the defendant was
convicted, my colleagues explain that we may find plain error only
9
Although the terms "waiver" and "forfeiture" are sometimes
used interchangeably, "[w]hether an objection has been waived or
simply forfeited affects the scope of our appellate review."
United States v. Gaffney-Kessell, 772 F.3d 97, 100 (1st Cir. 2014).
Waiver occurs when a litigant intentionally relinquishes or
abandons a known right, and we ordinarily will not consider a
waived issue on appeal. Id. (citing United States v. Olano, 507
U.S. 725, 733 (1993)). Forfeiture refers to "a 'failure to make
the timely assertion of a right.'" Id. (citing Olano, 507 U.S. at
733). "A forfeited issue still may be reviewed on appeal, albeit
for plain error." Id. This distinction is important and
consequential in cases like the one before us.
-33-
if we are "confident that none of the distinct offenses set forth
in that law" would qualify as a crime of violence. Slip op. at 16.
Otherwise, they say, an error in using the conviction as a
predicate for enhancement would not be clear or obvious. Moreover,
drawing on our precedents, they conclude that the defendant cannot
satisfy the prejudice prong of the plain error inquiry unless he
shows "'a reasonable probability that, but for the error, the
district court would have imposed a different, more favorable
sentence.'" Slip op. at 21 (quoting Davis, 676 F.3d at 10, which
in turn quoted United States v. Turbides-Leonardo, 468 F.3d 34, 39
(1st Cir. 2006)). To accomplish this showing of prejudice, the
defendant, in effect, is required to produce Shepard materials
revealing that his conviction was for a non-violent offense.
The animating principle of the modified categorical
approach, however, is that enhanced sentencing is improper unless
the government proves that the defendant's criminal history
justifies such severe punishment. Error occurs, therefore,
whenever a sentencing court increases a term of imprisonment based
on a predicate conviction under a divisible statute in the absence
of Shepard-approved proof that the conviction was for a qualifying
variant of the crime. For that reason, the defendant's burden in
the trial court is simply to note the absence of proof, not to
proffer the supporting documents to disprove his eligibility for an
enhancement. Under the approach my colleagues draw from prior
-34-
cases, Serrano's failure to make that simple objection to the lack
of proof transferred the duty of production to him on plain error
review.10
Although my colleagues understandably follow a path set
out in prior cases, this dramatic shift of responsibility is unfair
and wrong. I therefore first review why I view our precedent as
flawed and incompatible with Supreme Court precedent before
elaborating on what I believe is the proper analysis.
B. The Varying Paths of our Prior Cases
Our cases do not present a uniform approach for analyzing
plain error in the context of a claim that the district court
improperly lengthened a sentence based on the defendant's prior
conviction under a divisible statute. In some instances, we have
held the government accountable for the absence of evidence in the
record. See, e.g., Ramos-González, 775 F.3d at 506-08 (vacating
sentence that included career offender status because the records
submitted by the government did not show the nature of defendant's
conviction under a divisible statute); Dávila-Félix, 667 F.3d at 57
(concluding that, "on the record before us, the Government has not
met its burden of proving that [defendant's] prior drug conviction
qualified as a career offender predicate"); United States v.
Torres-Rosario, 658 F.3d 110, 117 (1st Cir. 2011) (noting that,
10
Likewise, even if a defendant insists that the crime of
conviction is not a crime of violence, he does not have to prove
that assertion.
-35-
"[o]n remand, the government remains entitled to establish the
[basis for the sentencing enhancement] by showing that one of the
assault and battery convictions was a crime of violence" (citation
omitted)). In the latter two cases, however, the courts identified
reasons why the defendants understandably failed to make an earlier
challenge to the depiction of their convictions as qualifying
predicates, thereby articulating justifications for remanding the
case for resentencing notwithstanding the defendant's heavy burden
on plain error review.11 In Ramos-González, the government already
had had multiple opportunities to prove career-offender status, and
the panel declined to give the government a third chance. 775 F.3d
at 508.
In other cases involving divisible statutes, panels of
this court have held the defendants accountable for the absence of
supporting documents in the record despite the government's burden
to produce such records. See, e.g., Davis, 676 F.3d at 9-10;
Turbides-Leonardo, 468 F.3d at 39-40. In these cases, the panels
bypassed explicit identification of the error and -- ostensibly
addressing the prejudice prong of the plain error standard --
articulated the requirement relied on by my colleagues: a defendant
11
In Dávila-Félix, the court noted that the drug convictions
at issue "were only briefly referenced and were not discussed or
relied upon at sentencing." 667 F.3d at 57. In Torres-Rosario,
the panel excused a concession that the defendant fell within the
armed career criminal statute (an arguable waiver) because of a
change in First Circuit law prompted by new Supreme Court
precedent. See 658 F.3d at 116.
-36-
must show that, absent the error, he probably would have received
a shorter sentence. Davis, 676 F.3d at 10; Turbides-Leonardo, 468
F.3d at 39.
As I explain below, the failure to confront the nature of
the error is a threshold flaw in the Turbides-Leonardo and Davis
assessments of plain error, and the mistake results in a
misdirected prejudice analysis. As my colleagues recognize, the
plain error analysis in Turbides-Leonardo was dicta, given the
panel's statement that, "[a]ll things considered, we think that
what transpired here amounted to waiver." 468 F.3d at 38.12 In
Davis, the panel followed the Turbides-Leonardo dicta without
analyzing its legal foundation, perhaps because the defendant's
conduct there manifested waiver.13 Davis complained that he should
not be sentenced as a career offender, but he never argued that
12
In my view, the circumstances described in Turbides-Leonardo
do not show waiver. Waiver should be reserved for cases in which
the defendant explicitly agrees that particular listed crimes
qualify as predicates, and it should not be inferred from silence.
See Torres-Rosario, 658 F.3d at 116 ("At least where a party makes
an explicit and specific concession, practical reasons favor
holding a party to such a concession . . . ."). In Turbides-
Leonardo, the defendant simply failed to object, both to the
Presentence Investigation Report ("PSR") and at sentencing, which
is forfeiture. See 468 F.3d at 37. Nonetheless, the decision
incorporates an assumption that waiver occurred, and I will do
likewise. In the case now before us, Serrano did object to the
PSR's guidelines calculation, albeit on other grounds. The
government does not argue waiver, and I agree that Serrano's
failure to object specifically on the predicate-crime issue is
properly characterized as forfeiture.
13
Indeed, the scenario in Davis is more aptly labeled a waiver
than were the circumstances described in Turbides-Leonardo.
-37-
career-offender status was improper because the district court
failed to determine the nature of the pertinent predicate
conviction. See 676 F.3d at 6 n.2, 7, 10 n.7. In fact, appellate
counsel twice sought to withdraw on the ground that he "'could not
discern a non-frivolous basis for appeal.'" Id. at 6 n.2 (quoting
counsel's brief). The panel refused those requests and directed
counsel to address the plain error standard. Counsel, however, did
not submit briefing on plain error and, "when questioned at oral
argument regarding any potential prejudice to Davis based on the
district court's failure to undertake the categorical approach or
to examine the character of Davis's 2006 assault and battery
conviction, Davis's counsel could not point to any." Id. at 10
n.7.
In these circumstances, I can understand how the Davis
panel came to rely on the Turbides-Leonardo approach to plain error
without closely examining it or explicitly acknowledging it as
dicta. Treating Davis's claim as forfeited rather than waived was
generous and, given that Davis did not raise the district court's
failure to apply the modified categorical approach even on appeal,
the panel had no reason to probe deeply into the Turbides-Leonardo
articulation of the inquiry. Here, by contrast, Serrano develops
his claim that the district court erred by counting his domestic
violence offense as a predicate crime of violence, asserting, inter
alia, that some crimes under Article 3.1 "clearly do not involve
-38-
the use of violent force." Br. at 23. Nonetheless, because Davis
applies the plain error test to a scenario it labels as forfeiture,
it appears to be binding precedent on the application of the plain
error test where, as here, there are no distinguishing facts like
those in Ramos-González, Dávila-Félix, or Torres-Rosario.
The fact remains, however, that our cases fail to deal
consistently with the government's initial burden of proof in the
plain error context. Where the government was required to retain
the burden to prove the nature of the defendant's conviction, the
courts relied on particular circumstances -- a change in the law,
the convictions' non-essential role in the prior sentencing, or the
government's multiple prior attempts -- to explain the defendants'
default or find the burden unmet. In the two instances where the
burden was switched from the government to the defendant, the
courts dealt explicitly or de facto with an intentional
relinquishment of the defendant's rights -- a waiver -- and avoided
the question of what error the court committed. We have not
examined how, or if, these cases may be reconciled with each other
and whether they achieve the objectives of the modified categorical
approach. Furthermore, the uneven treatment within our own circuit
is reflected in a conflict among the circuits. Compare, e.g.,
United States v. Dantzler, 771 F.3d 137, 149 (2d Cir. 2014) ("The
absence of an objection will not relieve the Government of its
burden of proving through Taylor- and Shepard-approved sources that
-39-
the ACCA enhancement applies."), with, e.g., United States v.
Zubia-Torres, 550 F.3d 1202, 1209 (10th Cir. 2008) ("By failing to
present any evidence that relevant documents would indicate his
conviction was not for [a qualifying predicate offense], the
defendant has failed to meet his burden under the third prong of
plain error review.").
In sum, we lack a thoughtful, uniform analysis for
assessing plain error when a defendant claims that his sentencing
enhancement was improperly based on an unexamined conviction under
a divisible statute. Our court, en banc, should take the
opportunity to develop such an analysis in this case.
C. The Correct Approach
To properly conduct the plain error inquiry, a court must
have a correct understanding of the error at issue. As described
above, some of our cases have sidestepped the question of error to
focus on the question of prejudice. In so doing, however, those
courts performed an analysis premised on a misidentification of the
error, which leads them to cast aside the government's burden of
proving the basis for an enhancement. In Turbides-Leonardo and
Davis, the panels focus on the enhanced sentence, and consequently
evaluate prejudice by asking the usual question we ask when
sentences are reviewed for plain error: is it reasonably probable
that, but for the error, the defendant would have received a lower
sentence? The length of the sentence -- though ultimately our
-40-
concern -- is not the "plain" error. Because the government
initially bears the burden to prove that a conviction represents a
crime of violence, Dávila-Félix, 667 F.3d at 55, the error occurs
when the district court enhances a sentence based on a prior
conviction under a divisible statute without first confirming that
the conviction qualifies as a predicate offense. That confirmation
may be achieved in various ways: through documentary evidence
(i.e., the Shepard materials), by concession of the defendant, or
by means of an interpretation of the predicate criminal statute --
i.e., a legal ruling by the court -- that every variant of the
offense qualifies as a crime of violence.
Here, where the statute on its face appears to encompass
alternatives that neither involve physical force against a person
nor present a "serious potential risk of physical injury to
another," U.S.S.G. § 4B1.2(a),14 the court erred by using the
conviction to enhance Serrano's sentence without demanding proof
from the government that the defendant's conviction was for a
violent version of the divisible crime. It is possible that the
enhancement is also erroneous because the conviction at issue was
not, in fact, a crime of violence. But to find that the sentencing
14
Article 3.1 applies to "[a]ny person who employs physical
force or psychological abuse, intimidation or persecution against
the person of [a domestic partner] . . . to cause physical harm to
the person, the property held in esteem by him/her, . . . or to
another's person, or to cause grave emotional harm . . . ." P.R.
Laws Ann. tit. 8, § 631.
-41-
judge erred in applying the modified categorical approach, an
appellate court need not reach the nature of the conviction. Error
has occurred when the court relies on a conviction under a
divisible statute without confirming, through approved sources
provided by the government, that the conviction represents a crime
of violence.15
The failure to recognize this error is what led the
Turbides-Leonardo panel astray. Its approach looks beyond the
district court's erroneous reliance on an unelaborated conviction
under a divisible statute and asks whether the defendant has shown
that the proper analysis would have revealed that the conviction
was erroneously used as a predicate for enhancement. Even if the
district court had performed the proper analysis, however --
involving the scrutiny of Shepard-approved documents -- the inquiry
may not have shed light on the predicate conviction. The
government may not have been able to produce appropriate records of
the targeted conviction -- the documents may be inaccessible or no
longer exist, meaning that the conviction could not be used to
15
I address in this concurrence only the treatment of
predicate convictions under a divisible statute, where the statute
on its face provides notice to the government and the court that a
conviction is unusable as a predicate offense without further
inquiry under the modified categorical approach. I therefore do
not consider the nature of plain error review for challenges to
predicate convictions under "'indivisible' statute[s]." Descamps,
133 S. Ct. at 2281; id. at 2282 (holding that "sentencing courts
may not apply the modified categorical approach when the crime of
which the defendant was convicted has a single, indivisible set of
elements").
-42-
enhance the defendant's sentence. Hence, by focusing on the
possibility that the defendant was convicted of a qualifying crime,
and requiring him to prove that he was not, we unfairly leap over
the threshold analytical error, i.e., the sentencing court's
failure to require the government to establish the nature of the
conviction through approved sources.
If that error were properly acknowledged, the plain error
analysis here would unfold unequivocally in the defendant's favor.
Given the broad language of Article 3.1, and the dearth of evidence
indicating whether the defendant was convicted of a crime of
violence, the court's error in relying on the unexamined conviction
was sufficiently "plain" to satisfy the second prong. The gap in
the record should have been obvious to the court. The remaining
two elements are equally straightforward. A defendant inescapably
suffers prejudice when he receives an extended term of imprisonment
without the evidentiary support necessary to justify it,16 and an
16
In the career offender context, the error technically
results in an elevated base offense level, which can be presumed to
lead the district court to impose a longer sentence than would
otherwise apply. See Turbides-Leonardo, 468 F.3d at 37 (noting
that a lower Guidelines sentencing range "presumably [will result
in] a more lenient sentence"). In the context of the Armed Career
Criminal Act ("ACCA"), the erroneous reliance on predicate
convictions may trigger improper mandatory minimum sentences. See,
e.g., Shepard, 544 U.S. at 15 (noting that the ACCA mandates a
minimum 15-year sentence after three convictions for serious drug
offenses or violent felonies). We have long treated precedent on
the ACCA and the Guidelines career offender enhancement
interchangeably with respect to the modified categorical approach.
Ramos-González, 775 F.3d at 504 n.24.
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unsupported, prolonged incarceration must be deemed a miscarriage
of justice. See Ramos-González, 775 F.3d at 507 & n.29; Torres-
Rosario, 658 F.3d at 117.17
Admittedly, this plain error analysis has the feel of
allowing the defendant to escape with little disadvantage from his
failure to make a timely objection. All four prongs of the plain
error inquiry effectively turn on the finding that the error was
plain, and the error will almost always be plain when there are no
supporting documents in the record. Importantly, however, the
typical remedy for a finding of prejudicial plain error in this
context is simply a remand for development of the sentencing
record. In many instances, the government on remand will be able
to produce the necessary documents to substantiate the qualifying
predicate offense, and the defendant's "victory" will be short-
lived. This is the approach taken by a number of circuits. See,
e.g., United States v. Reyes, 691 F.3d 453, 459-60 (2d Cir. 2012)
(per curiam) (finding plain error requiring remand where the
district court relies on the PSR to characterize an offense as a
"crime of violence," "even where the defendant does not object to
the PSR's description"); United States v. Castillo-Marin, 684 F.3d
914, 919, 927 (9th Cir. 2012) (same); United States v. Boykin, 669
17
My discussion presumes that the defendant's PSR does not
list other predicates that categorically qualify as crimes of
violence and could be substituted for the one on which the district
court erroneously relied. The prejudice assessment obviously would
be different if that were the situation.
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F.3d 467, 469-72 (4th Cir. 2012) (finding plain error and remanding
for resentencing where the district court relied on the PSR to
conclude that the defendant had the requisite number of violent
felonies for ACCA enhancement); United States v. McCann, 613 F.3d
486, 502 (5th Cir. 2010) ("When a court . . . relies on the PSR
alone [to characterize an offense as a crime of violence], it makes
an error that is clear and obvious.").
Moreover, we must acknowledge the potentially severe
consequences of using prior convictions improperly -- substantially
prolonged terms of incarceration.18 Undoubtedly, that harsh impact
underlies the Supreme Court's carefully circumscribed list of
acceptable records for confirming that a conviction under a
divisible statute may be used to enhance a sentence. At the same
time, it is an unfortunate reality that many claims such as
Serrano's come to us on plain error review. Criminal defendants
often must rely on court-appointed counsel who, faced with a myriad
of trial and sentencing issues, predictably overlook some of them.
18
For example, in Shepard, which involved the ACCA, the
government stated that Shepard's prior convictions "raised his
sentencing range from between 30 and 37 months (under the United
States Sentencing Guidelines) to the 15-year minimum required by
[the statute]." 544 U.S. at 16. In United States v. Martin, 749
F.3d 87 (1st Cir. 2014), we described as "significant" the
difference in sentence between career offender status and non-
career offender status: a career offender range of 188 to 235
months compared with an otherwise applicable sentencing range of 27
to 33 months. Id. at 91. See also, e.g., United States v.
Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012) (comparing
Guidelines range of 46-57 months with enhancement based on crime of
violence to range of 0-6 months absent the enhancement).
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The extremely high hurdle to post-conviction relief based on
ineffective assistance of counsel means that such a remedy is
uncertain at best.
In short, there is simply no reason to apply plain error
in a way that will leave intact lengthy, possibly unjustified terms
of imprisonment when the cost of ensuring fairness -- a
resentencing proceeding -- is minimal. We should not be
uncomfortable with an "easy" showing of plain error, even
recognizing the high bar that the plain error standard ordinarily
represents. Indeed, the fourth prong of the plain error test
requires us to consider "'the fairness, integrity, or public
reputation of judicial proceedings.'" United States v. Mercado,
777 F.3d 532, 536 (1st Cir. 2015) (quoting United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001)). The plain error approach we
apply in this case is incompatible with those concerns.
D. The Role of the PSR
The mistaken approach to plain error adopted in Turbides-
Leonardo reflects the confusion in our law about when it is
appropriate to rely on an unobjected-to PSR to prove a defendant's
criminal history. Courts may accept the PSR's representation of
the existence of a prior conviction in the absence of objection.
See, e.g., United States v. Jimenez, 512 F.3d 1, 7 (1st Cir. 2007)
(stating that, where an offense listed in a presentence report "is
not disputed before the sentencing court, the report itself is
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competent evidence of the fact stated and, thus, is sufficient
proof of that fact"); United States v. Brown, 510 F.3d 57, 74 (1st
Cir. 2007) (describing the government's burden of proving a
predicate conviction for sentencing purposes as "modest," and
noting that it can be satisfied by, inter alia, "introducing a
certified copy of the judgment, or by a statement in the PSR").
However, courts are not permitted to rely on the PSR to
establish the character of a conviction under a divisible statute.
A decision to accept the PSR as adequate evidence of the nature of
a defendant's prior crimes would conflict with the Supreme Court's
directive that the particular offense committed in violation of a
divisible statute be determined through examination of Shepard-
approved documents. Indeed, police reports are a typical source of
the facts reported in a PSR, see, e.g., Davis, 676 F.3d at 8-9
(noting that the PSR's summary of a prior crime was based on a
police report), and police reports are expressly excluded from the
list of approved documents, see, e.g., Ramos-González, 775 F.3d at
506 (noting that we "may not rely on the police reports related to
the earlier conviction" (quoting Carter, 752 F.3d at 20 (citing
Shepard, 544 U.S. at 16))). Although the PSR will commonly include
the details of the defendant's criminal conduct, it will not
necessarily reveal the pertinent information for the modified
categorical approach, i.e., the specific elements of the crime
underlying the listed convictions. See, e.g., Descamps, 133 S.
-47-
Ct. at 2283 ("The key [in determining whether a prior conviction
can serve as an ACCA predicate] . . . is elements, not facts.");
id. at 2289 (noting that a defendant may have pled guilty to a less
serious version of the crime than reflected in factual statements
"found in the old record").
Thus, although our cases unequivocally allow a sentencing
court to rely on the PSR to confirm the existence or validity of
convictions in the absence of an objection, other cases properly
recognize that such deference cannot extend to the question whether
convictions under a divisible statute represent qualifying
predicates for sentencing enhancements. See, e.g., Dávila-Félix,
667 F.3d at 56-57 (rejecting government's reliance "primarily upon
the facts as recounted in the presentence investigation report,"
despite the defendant's failure to object to the PSR's analysis);
Jimenez, 512 F.3d at 7 (stating that sufficient proof of the two
prior convictions "does not necessarily end our inquiry" because
"[i]n some circumstances, the question would remain whether the
underlying offenses qualify as controlled substance offenses within
the meaning of the applicable sentencing guideline").
Yet, in Turbides-Leonardo, the panel cited a single
Eighth Circuit case for the proposition that a PSR "may be a
permissible source of information about a prior conviction for
sentence enhancement purposes" to bolster its conclusion that the
district court acted "reasonabl[y]" in relying on the
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uncontroverted PSR to enhance the defendant's sentence based on a
conviction under a divisible statute. 468 F.3d at 39 (citing
United States v. Arrieta-Buendia, 372 F.3d 953, 955-56 (8th Cir.
2004)). In the Eighth Circuit case, however, the defendant had
admitted his conviction for a type of crime that qualifies as a
predicate offense. See Arrieta-Buendia, 372 F.3d at 955 (stating
that the defendant "told the district court he was not guilty of
the California felony of transporting methamphetamine, but was
forced to plead guilty to that crime"). Arrieta-Buendia is not
only an out-of-circuit precedent, but it also is inapt where, as
here, the PSR does not reveal whether a conviction under a
divisible statute is an eligible predicate offense and the
defendant has not waived or conceded the point.
To some extent, the panel in Davis recognized the
difference between using a PSR to prove the fact of a conviction
under a divisible statute and relying on the report to establish
the specific elements of the crime underlying that conviction. At
issue in Davis was whether a conviction for assault and battery was
a predicate offense for career offender status. 676 F.3d at 7.
The panel noted that the only evidence in the record indicating the
violent nature of the offense was in the PSR, with details drawn
from police reports. Id. at 5, 8-9. The defendant, however, did
not object to the PSR's characterization of the offense as a crime
of violence, and he did not contest the government's
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characterization of him as a career offender at the sentencing
hearing. Id. at 6. On appeal, as discussed above, the panel found
that the defendant had failed to satisfy the prejudice prong of the
plain error inquiry: "[Defendant] has made no argument that the
assault and battery was anything other than the harmful type, doing
nothing, even on appeal, to question the description provided in
the PSR or to argue that appropriate Shepard materials would prove
that he committed a non-harmful battery." Id. at 10.
The Davis panel, however, directly confronted the
adequacy of the PSR to show the requisite violent conduct. It
first quoted the assertion in Torres-Rosario that "'treating a
Massachusetts assault and battery conviction as a [career offender]
predicate, without further evidence of violence, is now plain
error.'" Id. at 9 (quoting Torres-Rosario, 658 F.3d at 116)
(alteration and emphasis in Davis). The Davis panel then went on
to speculate that "the description in the PSR might constitute such
further evidence," and, for that reason, "this case does not neatly
fall within the plain error standards we set in Torres-Rosario."
Id. In an immediately following footnote, the panel observed that
"[w]e have never squarely addressed whether reliance on a PSR under
these circumstances is proper," but noted prior dicta indicating
that, even though police records are not "permissible Shepard
materials," "we would approve of the use of a PSR's summary of
police reports to support the characterization of a predicate
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offense when the defendant did not object to the PSR." Id. at 9
n.6.
This arguable approval in Davis of unchallenged police
reports in a PSR to establish the character of a predicate offense
is weakly grounded in our precedent and contrary to Shepard. The
precedent cited for this proposition is Jimenez, where the panel's
primary focus was on whether challenged predicate crimes listed in
the PSR were adequately verified, not on the convictions' character
for the modified-categorical inquiry. See Jimenez, 512 F.3d at 6(noting appellant's argument that "the district court erred when it
relied on the PSI Report for proof of these prior convictions").
Jimenez did not argue that either of the challenged convictions was
"for an offense that falls outside the contemplation of the career
offender provisions." Id. at 5 n.3; see also id. at 7 (observing
that "appellant has made no argument, either in the lower court or
in this court, that his prior convictions, if properly
substantiated, do not qualify as convictions for controlled
substance offenses").19
19
The precedent cited by the Jimenez panel further
demonstrates that the issue addressed there was whether the
convictions were properly included in the PSR, not whether the
convictions were eligible predicates for enhancement. To support
its statement that the PSR provides "competent evidence of the fact
stated and, thus, is sufficient proof of that fact," the court
cited United States v. Pelletier, 469 F.3d 194, 202-03 (1st Cir.
2006), and United States v. Cordero, 42 F.3d 697, 701 (1st Cir.
1994), which involved challenges to the fact (Pelletier) or
constitutionality (Cordero) of a conviction. 512 F.3d at 7.
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Davis thus contemplates disregarding the Supreme Court's
explicit restriction on what documents may be consulted to
determine the nature of a predicate conviction under a divisible
statute, allowing reliance on materials (i.e., police reports) that
have been expressly designated as unacceptable for this purpose.
See Shepard, 544 U.S. at 16. In my view, however, we are not free
to depart from the Supreme Court's methodology for determining the
eligibility of a predicate offense, even in the context of plain
error. That methodology, designed to ensure that prolonged
sentences are justified, has substantive importance. See Dantzler,
771 F.3d at 149 (stating that the defendant's failure to object did
not "render the PSR's description more reliable in establishing the
requisite" predicate). That is why, when a sentencing judge errs
by failing to demand Shepard-approved proof that the defendant's
conviction under a divisible statute was for a predicate offense,
a sentencing enhancement cannot stand if its only foundation is the
defendant's PSR, at least when the report is not drawn from
approved sources. Accord Reyes, 691 F.3d at 459 ("We have little
trouble concluding that a sentencing court may not rely on a PSR's
description of a defendant's pre-arrest conduct that resulted in a
prior conviction to determine that the prior offense constitutes a
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'crime of violence' under U.S.S.G. § 4B1.2(a)(1), even where the
defendant does not object to the PSR's description.").20
The Turbides-Leonardo approach, however, indirectly gives
Serrano's PSR dispositive weight by rejecting his claim that the
record does not support classifying his Article 3.1 offense as a
crime of violence. The district court accepted the base offense
level calculation recommended in the PSR, which was premised on
multiple prior convictions -- including under Article 3.1 -- for
crimes of violence. In failing to require proof of the actual
basis for Serrano's convictions, the district court necessarily
deferred to the PSR's depiction of his offenses. By leaving the
district court's reliance on the PSR undisturbed (unless the
defendant comes forward with contrary evidence), we are sanctioning
that deference. Yet, as I have shown, any suggestion in our cases
that such deference may be permissible developed from inapplicable
precedent and, more importantly, contravenes the Supreme Court's
specific delineation in Shepard of the records that may
20
In Dantzler, the Second Circuit reserved judgment on whether
a PSR may be a permissible source of evidence of the nature of a
predicate conviction if the report "was derived in whole, or in
large part," from Shepard-approved materials. 771 F.3d at 147. I
likewise intimate no view on that scenario. But see, e.g., Boykin,
669 F.3d at 469 (stating that a PSR may be used for enhancement
purposes if it "'bears the earmarks of derivation from Shepard-
approved sources,'" at least where the defendant "'never raised the
slightest objection either to the propriety of its source material
or to its accuracy'" (quoting United States v. Thompson, 421 F.3d
278, 285 (4th Cir. 2005)).
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substantiate the eligibility for enhancement of a conviction under
a divisible statute.
In light of this analysis, the district court plainly
erred in deferring to the PSR -- or, as described above, in failing
to demand acceptable forms of proof from the government. The
defendant's failure to make a timely objection imposes on him the
burden to show that he suffered from the court's error. We should
conclude that his burden is easily met -- and a resentencing
required -- if the court relied on such convictions to enhance his
sentence.
II.
In examining a claim of plain error in the context of the
modified categorical approach, we cannot lose sight of the courts'
obligation to ensure that extended incarceration is imposed only
when the government has proven that it is justified by a
defendant's criminal history. We can, and should, meet this
obligation by adopting the Second Circuit's (and other courts')
approach that a "defendant's failure to object d[oes] not cure the
Government's failure to submit the proper evidence." Dantzler, 771
F.3d at 149 (describing the holding in Reyes, 691 F.3d at 459). As
I have explained, requiring the government to retain its burden to
justify a sentencing enhancement does not result in excusing the
defendant's default. Nor will a finding of prejudicial plain error
and the required relief -- at most, a new sentencing proceeding --
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impose undue burden on the court. Although few sentences may be
changed through this process, "the fairness, integrity, [and]
public reputation of judicial proceedings" will be enhanced.
Mercado, 777 F.3d at 536 (internal quotation marks omitted).
In this case, where variants of Article 3.1 do not
include the requisite element of violence, we should not reject
appellant's claim on the ground that some offenses under the
statute would qualify as predicate crimes of violence. The
district court committed plain error when it relied on Serrano's
conviction under that divisible statute to justify an increased
term of imprisonment in the absence of approved forms of evidence
of the nature of his particular crime. The court should have
insisted that the government shoulder its burden to substantiate
that Serrano's conviction was in fact a qualifying predicate.
Hence, on en banc review, this court should hold that Serrano is
entitled to a new sentencing proceeding where the government may
seek to show that his conviction was for a crime of violence.
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