United States v. Remoi ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-16-2007
USA v. Remoi
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4866
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"USA v. Remoi" (2007). 2007 Decisions. Paper 1604.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-4866
__________
UNITED STATES OF AMERICA
v.
OKOCCI REMOI,
Appellant.
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 02-cr-00804-1)
District Judge: Honorable James K. Gardner
__________
Submitted Under Third Circuit LAR 34.1(a)
on January 8, 2007
Before: SLOVITER and RENDELL , Circuit Judges,
and IRENAS, District Judge.
(Filed: February 16, 2007)
__________
OPINION OF THE COURT
__________
__________________
* Honorable Joseph E. Irenas, Senior Judge of the United States District Court for
the District of New Jersey, sitting by designation.
RENDELL, Circuit Judge.
Okucci Remoi appeals from a sentence entered following his April 2003
conviction for hampering the departure of an alien subject to removal, in violation of 8
U.S.C. § 1253(a)(1)(C). Remoi appeals to our court for a second time, following a
remand under United States v. Booker, 543 U.S. 220 (2005), now contending that the
District Court erred under Shepard v. United States, 544 U.S. 13 (2005), by concluding,
based solely on the charging document and without consulting the record of Remoi’s
guilty plea, that his 1990 New Jersey conviction on two counts of criminal sexual contact
involved physically helpless victims and therefore qualified as a crime of violence under
United States Sentencing Guidelines § 2L1.2. We will affirm the District Court’s
sentencing order.
I.
Remoi’s argument on appeal is that the Supreme Court’s holding in Shepard,
which further explains the exception to the “categorical” approach used to determine
whether the elements giving rise to liability in a prior conviction comport with the
elements necessary to trigger a sentencing enhancement, is somehow at odds with the
methods used at sentencing by the District Court. We disagree.
We note that the procedural posture of this appeal substantially undercuts Remoi’s
claim. In our previous opinion in United States v. Remoi, 404 F.3d 789, 792-93 (3d Cir.
2005) (“Remoi I”), we specifically concluded that Remoi’s 1990 conviction for criminal
2
sexual contact categorically qualified as a “forcible sex offense,” and therefore that it
constituted a crime of violence for purposes of the enhancement under § 2L1.2.1 Shepard
was decided five weeks before our opinion in Remoi I was filed, and we rejected Remoi’s
petition for rehearing based on Shepard. Only if our ruling in Remoi I was inconsistent
with Shepard, would we revisit it here, but we find no such inconsistency.
Remoi reads Shepard to mean that a District Court must look to both the
adjudicative records surrounding the defendant’s guilty plea and the charging document
to determine whether a defendant’s prior conviction is of a kind that triggers an
enhancement under the Guidelines. Given this reading, Remoi contends that because he
never specifically admitted to sexual contact with a “helpless victim” during his plea
colloquy, the Government cannot show that his prior conviction was for a crime of
violence under the “categorical approach.” However, regardless of the accuracy of his
interpretation of Shepard, Remoi’s reliance on that case is misplaced.
In Shepard, the Supreme Court explained how the exception to the categorical
approach, previously set forth in the context of convictions following trial in Taylor v.
United States, 495 U.S. 575 (1990), should be applied to convictions following plea
agreements. In Taylor, the Court determined that an exception to the strict categorical
approach was necessary when the statute under which the defendant was previously
1
Remoi was convicted again under the same statute for a similar crime in 1995, though
we did not rely on this conviction in Remoi I. Any determination that the 1990 conviction
qualifies for sentencing enhancement purposes applies equally to the 1995 conviction.
3
convicted includes multiple offenses, not all of which contain each of the elements
necessary to trigger a sentencing enhancement. In the case of these “divisible statutes,”
the sentencing court must still determine whether the conviction necessarily encompassed
all of the elements of the qualifying offense. However, to do so, the Supreme Court held
that a sentencing court was permitted to look beyond the plain language of the statute –
the usual limit of its gaze under the strict categorical approach – but that it could examine
no more than the charging document and jury instructions from the previous trial. Taylor,
495 U.S. at 602.
Extending this rule to those situations in which a sentencing court is called upon to
examine a conviction following a guilty plea, rather than following a full trial, the
Supreme Court in Shepard set forth the universe of documents a sentencing court could
examine and specifically declined to permit inquiry into police reports. The Court noted:
We hold that inquiry . . . is limited to the terms of the
charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.
544 U.S. at 26.
However, as we held in Remoi I, the charging document leading to the 1990 conviction is
clear, charging in both counts of criminal sexual contact that: “Remoi . . . did commit an
act of sexual contact with A.C. when A.C. was one whom Okocci Remoi knew was
physically helpless for the purpose of . . . contrary to the provisions of N.J.S.A. 2C:14-
4
3(b).” 2 We need look no further than that document to determine, as we did in Remoi I,
that Remoi was charged with and convicted of N.J.S.A. 2C:14-2c(2), which criminalizes
intentional sexual touching with “one whom the actor knew or should have known was
physically helpless.” Remoi I, 404 F.3d at 793. Accordingly, the enhancement under §
2L1.2 was applicable. On remand, the District Court adhered to this ruling and applied §
2L1.2 to Remoi’s sentence.
Given that we previously applied the strict categorical approach in Remoi I,
Shepard does not alter the District Court’s inquiry or the reasons for the result reached in
our previous opinion and we will accordingly AFFIRM.
________________
2
The first count of criminal sexual contact was as to Remoi’s touching of A.C., while
the second count was as to his touching of a different victim, M.S.
5