United States v. Otero ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-12-2007
USA v. Otero
Precedential or Non-Precedential: Precedential
Docket No. 05-3739
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-3739
___________
UNITED STATES OF AMERICA
v.
DEMETRIO OTERO,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00196)
District Judge: The Honorable William W. Caldwell
___________
ARGUED JULY 11, 2007
BEFORE: RENDELL, AMBRO,
and NYGAARD, Circuit Judges.
(Filed September 12, 2007)
___________
Gerald C. Peterson, Esq.
Brian J. Wanamaker, Esq. (Argued)
Winston & Strawn
35 West Wacker Drive, Suite 4200
Chicago, IL 60601
Counsel for Appellant
Theodore B. Smith, III, Esq. (Argued)
James T. Clancy, Esq.
Office of the United States Attorney
228 Walnut Street, PO Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Demetrio Otero appeals from an order denying his pro se
petition for habeas corpus relief under 28 U.S.C. § 2255. Otero
alleged in his petition that his trial counsel was ineffective for
2
failing to object at his sentencing to a 16-point offense level
increase which resulted from an earlier conviction for simple
assault. He argued there, as here, that simple assault is not a
“crime of violence,” and, hence, his conviction does not support
the 16-point enhancement the District Court imposed. The
District Court denied his habeas petition. We will reverse.
I.
Appellant Demetrio Otero, a citizen of Mexico, pleaded
guilty to one count of illegal re-entry into the United States by
an alien previously deported following a conviction for an
aggravated felony. See 8 U.S.C. § 1326 (a) and (b)(2).
At sentencing, the District Court increased Otero’s
offense level by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii),
because the court concluded that simple assault qualified as a
crime of violence under that provision. Otero was sentenced to
60 months’ imprisonment and did not file a direct appeal.
3
Otero filed a pro se motion pursuant to 28 U.S.C. § 2255,
alleging that his sentence was excessive because the District
Court improperly used the simple assault conviction to increase
his offense level by 16 levels. Otero asserted that his trial
counsel was ineffective for failing to raise the issue or object to
the PSR. The District Court held that the 16-level increase was
properly imposed because the simple assault conviction so
qualified as an aggravated felony under § 2L1.2(b)(1)(A)(ii).
The District Court concluded that using the PSR to prove
Otero’s simple assault conviction (supporting the 16 increase)
was proper, and that Otero failed to meet his burden of
establishing ineffective assistance of counsel. Accordingly, the
District Court denied Otero’s § 2255 motion and refused a
certificate of appealability. Otero timely filed his notice of
appeal and request for a certificate of appealability. We granted
4
Otero's request for a certificate of appealability but limited the
issues on appeal as follows:
[I]n addition to any other arguments they wish to
present, the parties’ briefs should discuss whether
counsel performed unreasonably in failing to
make an argument concerning Appellant’s
conviction for simple assault in light of prior
cases such as Taylor v. United States, 495 U.S.
575, 600 (1990), Jobson v. Ashcroft, 326 F.3d 367(2d Cir. 2003), United States v. Vargas-Duran,
356 F.3d 598 (5th Cir. 2004), and the like. We
also grant a certificate of appealability as to
Appellant’s argument that there was insufficient
proof of the prior conviction under Shepard v.
United States, 125 S.Ct. 1254 (2005).1
1.
Although we granted a certificate of appealability on
two issues, we need not reach Otero’s claims under Shepard
because we will reverse on his ineffective assistance of counsel
claim, grant the writ, and remand the cause for re-sentencing.
We do not reach constitutional issues unnecessarily. See
Santana Products, Inc. v. Bobrick Washroom Equipment, Inc.,
401 F.3d 123, 130-31 (3d Cir. 2005) (citing Spicer v. Hilton,
618 F.2d 232, 239 (3d Cir. 1980)).
5
United States v. Otero, No. 05-3739 (November 17, 2005).2 We
will affirm.
II.
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(a). Our jurisdiction is premised on 28 U.S.C.
§ § 1291, 2253, and 2255. Counsel was appointed for the
2.
Otero also contests whether an 8-level enhancement
for a prior aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C)
would be appropriate in this case. If the basis of that
enhancement was his prior conviction for simple assault, he is
correct. See U.S.S.G. § 2L1.2(b)(1)(C) app. note 2 (defining
“aggravated felony” by reference to 8 U.S.C. § 1101(a)(43));
Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005) (holding that a
conviction for simple assault under Pennsylvania law does not
qualify under 8 U.S.C. § 16(b), by way of 11 U.S.C
§ 1101(a)(43), as an ‘aggravated felony’). This, however, also
calls into question the Government’s argument here that the
predicate aggravated felony in fact was the simple assault.
Otero does not challenge the validity of his guilty plea, though,
and we note that he also has a prior conviction for Theft by
Unlawful Taking, which could serve as the predicate aggravated
felony. We leave it to the District Court on remand to sort
through the implications of this issue, if any.
6
Appellant pursuant to 28 U.S.C. § 1915(e)(1).3 Because the
issues identified by the COA are purely legal, our review is
plenary. See United States v. Coleman, 451 F.3d 154, 156 (3d
Cir. 2006).
III.
It is now axiomatic that to prevail on a claim of
ineffective assistance of counsel, Otero must establish that (1)
the performance of counsel fell below an objective standard of
reasonableness; and, (2) counsel’s deficient performance
prejudiced the defense. See Strickland v. Washington, 466 U.S.
668, 687-88 (1984); Albrecht v. Horn, 485 F.3d 103, 127 (3d
Cir. 2007).
3.
The Court is grateful for the services rendered by
appointed counsel, Gerald C. Peterson, Esq. and Brian J.
Wanamaker, Esq., of the law firm of Winston & Strawn,
Chicago, Illinois.
7
Although Otero did not articulate specifically in his
petition that simple assault does not qualify as a crime of
violence, we construe pro se pleadings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). That he did not separately
list the issue as a ground does not deter us from considering the
issue. Haines, 404 U.S. at 520 (pro se prisoner complaint,
“however inartfully pleaded" is held "to less stringent standards
than formal pleadings drafted by lawyers...."); see also Mitchell
v. Horn, 318 F.3d 523, 529 (3d Cir. 2003).
As noted, Otero was convicted of simple assault. In
Pennsylvania, simple assault is committed when a defendant:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a
deadly weapon;
(3) attempts by physical menace to put another in fear of
imminent serious bodily injury; or
8
(4) conceals or attempts to conceal a hypodermic needle
on his person and intentionally or knowingly penetrates
a law enforcement officer or an officer or an employee of
a correctional institution, county jail or prison, detention
facility or mental hospital during the course of an arrest
or any search of the person.
18 PA. CONS. STAT. ANN. § 2701(a) (2003).
Section 2L1.2(b)(1)(A) of the Guidelines provides for a
16-level increase for a defendant like Otero who was
“previously deported . . .after a conviction for a felony that is a
crime of violence.” The Guidelines definition of “crime of
violence” is “an offense under federal, state or local law that has
as an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G. § 2L1.2,
application note 1(B)(iii).
We are required to take a categorical approach when
deciding whether a conviction is for a crime of violence. Taylor
v. United States, 495 U.S. 575, 602 (1990). That is to say we
9
must look to the statute that Otero was convicted of violating, to
see whether the crimes therein described qualify as crimes of
violence. If so, the enhancement is proper.
Although we have yet to specifically decide whether
simple assault in Pennsylvania qualifies as a crime of violence
under U.S.S.G. § 2L1.2, we recently held that an alien’s
conviction under Pennsylvania’s simple assault statute did not
constitute a crime of violence under 18 U.S.C. § 16(a) that
would render the alien removable as an aggravated felon. See
Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005).4
We held in Popal that because a Pennsylvania simple
assault violation requires a minimum mens rea of recklessness
4.
Although the issue in Popal was the removal of an alien
for committing a crime of violence under § 16(a), its reasoning
is applicable to this case because its definition of “crime of
violence” is very similar to the definition contained in § 2L1.2,
i.e., whether the offense “has as an element the use ... of
physical force against the person or property of another.”
10
rather than intent, it is not a crime of violence. Popal, 416 F.3d
at 254. The reasoning behind our decision was hardly new or
innovative. Indeed, we held therein that it is “settled law in this
Circuit that an offender has committed a ‘crime of violence’
only if he acted with an intent to use force." Popal, 416 F.3d at
254. See also United States v. Parson, 955 F.2d 858 (3d Cir.
1992). Popal limits categorical crimes of violence to offenses
committed through intentional use of force against another
rather than reckless or grossly negligent conduct. Id. See also
Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121, 1132 (9th Cir.
2007). Although the issue in Popal was the removal of an alien
for committing a crime of violence under § 16(a), its definition
of “crime of violence” is identical to the definition contained in
§ 2L1.2, that is, whether the offense “has as an element the use
... of physical force against the person or property of another.”
11
Therefore, we conclude that our holding in Popal applies to the
relevant crime of violence definition under U.S.S.G. § 2L1.2.5
Turning to Otero’s ineffective assistance of counsel
claims, the issue becomes whether counsel performed
unreasonably in failing to object to the 16-level enhancement,
and the use of the PSR. Initially we note that, on its face, the
Pennsylvania simple assault statute does not require the “use of
force” when “causing bodily injury.” 18 PA. CONS. STAT. ANN.
§ 2701(a)(1). Given the available teachings of Taylor, counsel
did not need to rely on available precedent to make an argument
that simple assault in Pennsylvania is not a “crime of violence.”
The statute does not contain “use of force” as an element of the
5.
The Government would have us look to Otero’s
indictment for additional information regarding the nature of the
simple assault to which he pleaded guilty. Regardless whether
this would be appropriate, doing so would not strengthen the
Government’s case, for the indictment alleged that Otero’s
actions had been taken “intentionally, knowingly, or recklessly.”
(Emphasis added).
12
offense and counsel’s performance could be deemed deficient
on this basis alone.
Moreover, before the PSR was created and Otero
sentenced, there was existing case law calling into doubt
whether simple assault qualified as a crime of violence for
sentence enhancement purposes. Indeed, the Supreme Court in
Taylor had years earlier enunciated the categorical approach rule
under which counsel could have argued that simple assault was
not a crime of violence because the minimum mens rea required
for a conviction under the Pennsylvania statute is lower than
intent.
Additionally, our decision in Parson, supra., was
available at the time of Otero’s sentencing. In Parson, we stated
that an offender has committed a “crime of violence” under 18
U.S.C. § 16(a) only if he acted with an intent to use force. 955
F.2d at 866. See also Jobson v. Ashcroft, 326 F.3d 367, 372-73
13
(2d Cir. 2003) (holding that second-degree manslaughter was
not a crime of violence, and thus was not an aggravated felony
warranting an alien’s removal). Also, in United States v.
Vargas-Duran, 356 F.3d 598 (5th Cir. 2004), the Court of
Appeals for the Fifth Circuit determined that Texas’ intoxication
assault statute did not qualify as a crime of violence for the
purpose of applying the 16-level sentencing enhancement under
§ 2L1.2. The court held that the “use” of force under § 2L1.2
requires that a defendant intentionally avail himself of that
force. Vargas-Duran, 356 F.3d at 599 (emphasis added). The
court further held that the intentional use of force must be an
element of the predicate offense if the predicate offense is to
enhance a defendant’s sentence. Id. at 600. We acknowledge
that counsel cannot be deficient for failing to cite and argue
cases decided after sentencing. See, e.g., Fountain v. Kyler, 420
F.3d 267, 274 (3d Cir. 2005) (“[c]ounsel cannot be held
14
ineffective for failing to predict future developments in the
law.”). But, counsel does have a duty to make reasonable
investigations of the law. See Strickland, 466 U.S. at 691. We
have specifically held that counsel’s failure to cite favorable
decisions from other courts of appeals indicates deficient
performance. See, e.g., Jansen v. United States, 369 F.3d 237,
243 (3d Cir. 2004); United States v. Franks, 230 F.3d 811, 814
(3d Cir. 2000); United States v. Headley, 923 F.2d 1079, 1083-
84) (3d Cir. 1991). Based on cases like these, plus Taylor,
which endorsed a categorical approach, counsel here could have
argued that simple assault was not a crime of violence under §
2L1.2 because the minimum culpability required for a
conviction under the Pennsylvania statute is less than
intentional.
The decisions in Taylor, Parson, Jobson and Vargas-
Duran were readily available to counsel. There is no sound
15
strategy in counsel’s failure to object to the 16-level
enhancement in the PSR. “Where defense counsel fails to object
to an improper enhancement under the Sentencing Guidelines,
counsel has rendered ineffective assistance.” Jansen v. United
States, 369 F.3d at 244. We therefore find counsel’s
performance deficient.
Of course, Strickland requires more than just a showing
of substandard performance. Otero’s Sixth Amendment claim
cannot be sustained if he was not prejudiced by counsel's
substandard performance. Prejudice is established when, but for
counsel's error, there was a reasonable probability that the
outcome of the proceeding would have been different.
See Strickland, 466 U.S. at 694.
Here, Otero suffered prejudice as a result of counsel's
substandard performance. The prejudice prong is satisfied
“when a deficiency by counsel resulted in a specific,
16
demonstrable enhancement in sentencing — such as an
automatic increase for a ‘career’ offender or an enhancement for
use of a handgun during a felony — which would not have
occurred but for counsel's error.” United States v. Franks, 237
F.3d 811, 815 (5th Cir. 2000) (three extra months equals
prejudice) (citing United States v. Phillips, 210 F.3d 345, 351
(5th Cir. 2000). Without the 16-level enhancement, Otero’s
guideline range would have been only 18 to 24 months in
prison. The increased sentence constituted prejudice. See
Glover v. United States, 531 U.S. 198, 202-05 (2001).
Accordingly, Otero received ineffective assistance of counsel
when counsel failed to object to the 16-level enhancement in the
PSR.
IV.
Otero has made out a cognizable ineffective assistance of
counsel claim. We will reverse and remand with instructions
17
directing the District Court to grant the writ of habeas corpus
and to re-sentence Otero in accordance with this opinion.
18