United States v. Luna-Montoya , 80 F. App'x 334 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 5, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 02-41444
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO LUNA-MONTOYA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-753-ALL
_________________________________________________________________
Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Rigoberto Luna-Montoya appeals the district court’s
determination that his Texas conviction for theft from a person was
a “crime of violence” for purposes of assessing a sixteen-level
sentencing enhancement under § 2L1.2(b)(1)(A)(ii) of the 2001
version of the United States Sentencing Guidelines. Luna-Montoya
contends that his prior conviction for theft from a person is not
a “crime of violence” for these purposes since it does not have as
1
Pursuant to 5th CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set for in 5th CIR. R. 47.5.4.
an element the intentional use of force against a person.2 We
agree.
Luna-Montoya, a Mexico citizen and national, was discovered in
the United States by Border Patrol Agents in Texas on May 4, 2002.
Having been previously deported from the United States on March
31, 1999, Luna-Montoya was charged with being found unlawfully and
knowingly present in the United States after deportation, in
violation of 8 U.S.C. § 1326(a) and (b)(2). He subsequently pled
guilty to this charge. At sentencing, the district court accepted
the presentence report recommending a sixteen-level enhancement to
Luna-Montoya’s base offense level of eight on the grounds that
Luna-Montoya’s prior conviction of theft from a person3 under Texas
state law constituted a “crime of violence” under U.S.S.G. §
2L1.2(b)(1)(A)(ii). Notably, Luna-Montoya did not object to the
2
Luna-Montoya also contends, solely for the purpose of
preserving the issue for further appeal, that the "aggravated
felony" provision of 8 U.S.C. § 1326(b)(2) is unconstitutional in
the light of the Supreme Court's decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). He forthrightly concedes, however,
that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), which Apprendi expressly declined to
overrule. See Apprendi, 530 U.S. at 489-90. Accordingly, we need
not consider this matter any further. See United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000) ("'The Supreme Court has left no
doubt that as a constitutionally inferior court, we are compelled
to follow faithfully a directly controlling Supreme Court precedent
unless and until the Supreme Court itself determines to overrule
it.'") (quoting Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir.
1996)).
3
Prior to being deported in 1999, Luna-Montoya had pled guilty
to theft from a person in Texas and on November 6, 1998, he was
sentenced to six months’ confinement there. Immediately following
his release from prison, he was deported to his native Mexico.
2
report or to the increased offense level. After a three-level
reduction for acceptance of responsibility, this left Luna-Montoya
with a total offense level of twenty-one and a guideline
imprisonment range of seventy to eighty-seven months. The judge
ultimately sentenced Luna-Montoya to seventy months’ imprisonment.
On appeal, Luna-Montoya contends that the district court erred
in categorizing his earlier conviction of theft from a person as a
“crime of violence.” Ordinarily, a district court’s interpretation
and application of the Sentencing Guidelines is reviewed de novo.
United States v. Charles, 301 F.3d 309, 312-13 (5th Cir. 2002)(en
banc). Because Luna-Montoya did not raise this objection below,
however, this Court reviews the actions of the district court for
plain error. United States v. Calverley, 37 F.3d 160, 162 (5th
Cir. 1994) (en banc). To establish plain error, a petitioner must
show that there was an error; the error was clear and obvious; and
the error materially affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). When all of these
elements are present, we may exercise our discretion to correct the
error if it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks
and citation omitted).
The first question before this court is thus whether the
district court’s classification of Luna-Montoya’s earlier
conviction constitutes error. We find that it does. The 2001
Sentencing Guidelines specify that a prior offense qualifies as a
3
“crime of violence” for purposes of the sixteen-level sentencing
enhancement if it is either “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” or
an offense enumerated in Application Note 1(B)(ii)(II). U.S.S.G.
§ 2L1.2, cmt. n. 1(B)(ii); see United States v. Rayo-Valdez, 302
F.3d 314, 316 (5th Cir. 2002)(“The language of 2L1.2 says that crime
of violence means that which is in subparagraph I, and includes
that which is in subparagraph II.”). Theft from a person is not
one of the offenses enumerated in Application Note 1(B)(ii)(II).4
Accordingly, theft from a person is only a “crime of violence”
under § 2L1.2(b)(1)(A)(ii) if it “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.”
In analyzing this issue, we need not consider the facts
underlying Luna-Montoya’s previous conviction of theft from a
person. Instead, our duty is to “look only to the fact of the
conviction and the statutory definition of the prior offense” under
Texas law. Taylor v. United States, 495 U.S. 575, 602 (1990).
“Congress did not intend sentencing hearings to become retrials of
the underlying conduct involved in the defendant’s prior federal or
4
The enumerated offenses are "murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling." U.S.S.G. § 2L1.2,
cmt. n. 1(B)(ii).
4
state convictions.” United States v. Velasquez-Overa, 100 F.3d
418, 421 (5th Cir. 1996).
The Texas theft from a person statute under which Luna-Montoya
was convicted provides in relevant part:
(a) A person commits an offense if he unlawfully appropriates
property with intent to deprive the owner of property.
(b) Appropriation of property is unlawful if:
(1) it is without the owner’s effective consent
...
(e) an offense under this section is:
(4)a state jail felony if:
...
(B) regardless of value, the property is stolen from the
person of another.
TEX. PENAL CODE ANN. § 31.03.
Notably, nothing in the Texas statutory definition of theft
from a person indicates that “the use, attempted use, or threatened
use of physical force against the person of another” is an element
of the crime. Accordingly, we find that the district court erred
in determining that this offense constituted a “crime of violence”
for purposes of assessing a sixteen-level enhancement.
Under plain error review, however, a mere finding of error is
not enough to reverse the decision of the district court. For an
error to constitute reversible error, this Court must also conclude
that the error was “clear and obvious” and that it “affected [Luna-
Montoya’s] substantive rights.” Olano, 507 U.S. at 732. Duly
noting this, the government concedes the fact that the district
court committed error in classifying Luna-Montoya’s prior
conviction as a crime of violence. It contends, however, that this
5
fact does not warrant reversal since the district court’s error was
not clear and obvious. We disagree.
In determining a sentence, courts are “bound to follow each
sentencing guideline and accompanying policy statements.” United
States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.2002) (citing
Mistretta v. United States, 488 U.S. 361, 391 (1989), and Williams
v. United States, 503 U.S. 193, 199-201 (1992)). The language of
the relevant guideline here is clear and unambiguous: In order for
an offense to be classified as a “crime of violence,” it must “have
as an element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. §
2L1.2(b)(1)(A)(ii). Moreover, our prior case law has consistently
indicated that, in analyzing whether the use, attempted use or
threatened use of physical force is an element of a particular
offense, a court looks only at the statutory definition of the
prior offense. See, e.g., United States v. Shelton, 325 F.3d 553,
558 n.5 (5th Cir. 2003); Velasquez-Overa, 100 F.3d at 421. The
offense of theft from a person as defined by Texas law plainly does
not have such an element. Accordingly, the district court’s
finding that theft from a person constituted a crime of violence
for purposes of § 2L1.2(b)(1)(A)(ii) was clearly and obviously
erroneous.
Despite the clear language of the guideline and consistent
direction from this Court on the subject of how this guideline
should be applied, the government asserts that this error
6
nevertheless cannot be plain since no court in any circuit has
previously ruled on the question of whether theft from a person
under Texas law is a “crime of violence” for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). This argument, however, ignores the
established principle that an error may be plain despite the fact
that the precise underlying legal issue has never been addressed by
a court. See United States v. Spruill, 292 F.3d 207, 215 n.10 (5th
Cir. 2002) (noting that the fact that a particular factual and
legal scenario has not been addressed in a reported opinion “does
not preclude the asserted error . . . from being sufficiently clear
or plain to authorize vacation of the conviction on direct
appeal.”). What is more, we have applied this principle in a
nearly identical context before. For example, in United States v.
Gracia-Cantu, 302 F.3d 308, 312-13 (5th Cir. 2002), we found plain
error in a district court’s determination that injury to a child
constituted a “crime of violence,” notwithstanding the fact that
there was no prior circuit opinion addressing this specific matter.
Accordingly, the government’s argument to this end is without
merit.
Finally, on the question of whether the error made by the
district court affected Luna-Montoya’s substantial rights, this
court has previously found plain error where the incorrect
application of sentencing guidelines resulted in a “dramatic
increase” in the recommended imprisonment range and the actual term
of imprisonment imposed. See, e.g., United States v. Gracia-
7
Cantu, 302 F.3d 308, 313 (5th Cir. 2002); United States v. Alarcon,
261 F.3d 416, 423 (5th Cir. 2001); United States v. Aderholt, 87
F.3d 740, 744 (5th Cir. 1996). Here, without the sixteen-level
increase, Luna-Montoya would have been subject to a term of
imprisonment between twenty-one and twenty-seven months. With the
sixteen-level increase, Luna-Montoya’s recommended sentence was
between seventy and eighty-seven months, and he was actually
sentenced to seventy months’ imprisonment. This difference in
sentence is the same difference in sentence that this court found
to be a “dramatic increase” that “affected [the defendant’s]
substantial rights” and “seriously affect[ed] the fairness,
integrity, or public reputation of the judicial proceedings” in
Gracia-Cantu. 302 F.3d at 313. See also United States v.
Williamson, 183 F.3d 458, 464 (5th Cir. 1999)(finding that a two-
fold increase in prison time affected the defendant’s substantial
rights). Accordingly, we find that the district court’s error here
affected Luna-Montoya’s substantial rights, and we exercise our
discretion to correct it.
Having found that the district court committed error, that the
error was clear and obvious, and that it affected Luna-Montoya’s
substantial rights, we conclude that the district court’s sixteen-
level enhancement of Luna-Montoya’s sentence constituted plain
error. Therefore, we VACATE the sentence imposed by the district
court and REMAND with instructions to resentence Luna-Montoya in a
manner not inconsistent with this opinion.
8
VACATED AND REMANDED.5
5
Judge Garza concurs in the judgment only.
9