United States v. Magdaleno-Sanchez , 169 F. App'x 830 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals March 2, 2006
for the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 05-50047
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAUL MAGDALENO-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1402-ALL
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Raul Magdaleno-Sanchez (“Magdaleno”) pleaded guilty to illegally reentering the United
States after having been deported, in violation of 8 U.S.C. § 1326. At sentencing, the district court
enhanced Magdaleno’s base offense level by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because
it determined that he had been convicted in a Washington state court of a “crime of violence,” namely
assault in the seco nd degree with a special finding of sexual motivation. The district court also
included two points to Magdaleno’s criminal history score because it concluded that Magdaleno
committed the instant offense less than two years following release from custody for the state assault
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
offense. Magdaleno challenges his sentence on three grounds, claiming that: 1) section 1326(b) is
unconstitutional; (2) the district court violated his Sixth Amendment rights under United States v.
Booker;1 and 3) his prior conviction for assault in the second degree does not constitute a crime of
violence for purposes of U.S.S.G. § 2L1.2(b)(1)(a). We vacate Magdaleno’s sentence and remand
for resentencing for the reasons stated below.
As an initial matter, Magdaleno argues that because the indictment did not allege a prior
conviction, it charged only a violation of § 1326(a) and under Apprendi v. New Jersey1 his sentence
violated due process because it exceeded t he two-year maximum punishment for the § 1326(a)
offense charged. This argument is foreclosed by Almendarez-Torres v. United States.2 Although
Magdaleno contends that Almendarez-Torres was incorrectly decided and that a majority of the
Supreme Court would overrule it in light of Apprendi, we have repeatedly rejected such arguments
on the basis that Almendarez-Torres remains binding law.3 Magdaleno concedes that his argument
is foreclosed in light of Almendarez-Torres and circuit precedent, raising it here solely to preserve
it for further review.
Magdaleno next argues that the district court erred in sentencing him pursuant to the
mandatory Sentencing Guidelines system held unconstitutional in Booker.4 The government concedes
1
125 S. Ct. 738 (2005).
1
530 U.S. 466 (2000).
2
523 U.S. 224 (1998).
3
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. ), cert. denied, 126 S. Ct. 298(2005).
4
Booker, 125 S. Ct. at 764-65; see also United States v. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).
2
that Magdaleno preserved his FanFan claim of error.5 The sentencing transcript is devoid of
evidence that the district court would have imposed the same sentence under an advisory regime, and,
therefore, the government has not borne its burden of establishing beyond a reasonable doubt that the
district court’s error was harmless.6 Accordingly, we vacate Magdaleno’s sentence and remand to
the district court for resentencing. In the interest of judicial efficiency and to provide guidance on
remand, we address whether Magdaleno’s prior assault-in-the-second-degree conviction is a “crime
of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).7
Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a sixteen-level
enhancement of a defendant’s offense level “[i]f the defendant previously was deported, or unlawfully
remained in the United States, after a conviction for a felony that is . . . a crime o f violence.” An
offense constitutes a “crime of violence” if (1) it has the use of force against another as an element
of the offense, or (2) it fits within an enumerat ed list, which includes an “aggravated assault” and
“forcible sex offenses”.8 The government contends that Magdaleno’s prior conviction for assault in
the second degree is a crime of violence under both definitions. Because we conclude that
Magdaleno’s prior conviction “has as an element the use, attempted use, or threatened use of physical
force[,]” we need not address whether it is an “aggravated assault” or “forcible sex offense.” We
5
See United States v. Walters, 418 F.3d 461, 463 (5th Cir. 2005) (discussing the difference
between Sixth Amendment Booker error and Fanfan error).
6
See id.7
See Procter & Gamble Co. v. Amway Corp., 280 F.3d 519, 528 (5th Cir. 2002) (addressing
an issue “[t]o provide guidance on remand” even though other errors justified a remand); see also
In re Mirant Corp., 378 F.3d 511, 522 (5th Cir. 2004) (addressing an issue “[i]n the interest of
judicial efficiency and to provide guidance on remand”).
8
U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)).
3
review the district court’s characterization of Magdaleno’s prior conviction de novo.9
In determining whether a prior conviction of a non-enumerated offense is a conviction for a
crime of violence, this court “looks to the elements of the crime, not the defendant’s actual conduct
in committing it.”10 Consequently, “the statute of conviction, not the defendant’s underlying conduct,
is the proper focus.”11 However, if the statute contains multiple, disjunctive subsections, we may look
“beyond the statute to certain ‘conclusive records made or used in adjudicating guilt’ in order to
determine which particular statutory alternative applies to the defendant’s conviction.’”12
Nevertheless, these reco rds, which “are generally limited to the ‘charging document, written plea
agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which
the defendant[] assented[,]”13 may not be used to conclude that force is an element of the statute.14
Therefore, “[a]lthough the actual conduct described in the indictment[] could be construed to involve
the use of physical force against the person of another, that is ‘irrelevant’ in determining whether
physical force is in fact an element of the offense.”15 Instead, the relevant question is whether the
government must prove the intentional use of force to sustain a conviction under the particular
9
United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2005) (en banc).
10
Id.11
Id.12
United States v. Gonzalez-Chavez, 432 F.3d 334, 337 (5th Cir. 2005).
13
Id. (internal quotation marks and citations omitted).
14
United States v. Acuna-Cuadros, 385 F.3d 875, 879 (5th Cir. 2004).
15
Calderon-Pena, 383 F.3d at 257 (noting that the sentencing court may look to the
indictment “for the limited purpose of determining which of a series of disjunctive elements a
defendant’s conviction satisfies”).
4
statutory alternative at issue.16 “If any set of facts would support a conviction without proof of that
component, then the component most decidedly is not an element—implicit or explicit—of the
crime.”17
Magdaleno was convicted of assault in the second degree with a special finding of sexual
motivation, in violation of WASH. REV. CODE § 9A.36.021(1)(e). Subsection 9A.36.021(1)(e)
provides: “A person is guilty of assault in the second degree if he or she, under circumstances not
amounting to assault in the first degree . . . [w]ith intent to commit a felony, assaults another . . . .18
The statute further provides that a special finding of “sexual motivation”19 renders the offense a class
A felony rather than a class B felony.20 Because the term “assault” is not defined by statute,
Washington courts apply its common-law definition,21 which recognizes three types of assault: “(1) an
attempt, with unlawful force, to inflict bodily injury upon another; (2) an unlawful touching with
criminal intent; and (3) putting another in apprehension of harm whether or not the actor intends to
inflict or is incapable of inflicting harm.”22
Magdaleno argues that under the second common-law definition of assault (unlawful touching
16
United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc).
17
Id.18
WASH. REV. CODE. ANN. § 9A.36.021(1)(e).
19
“Sexual motivation” means “that one of the purposes for which the defendant committed
the crime was for the purpose of his or her sexual gratification.” WASH. REV. CODE. ANN.
§ 9A.94A.30(39).
20
WASH. REV. CODE. ANN. § 9A.36.021(2)(b).
21
Clark v. Baines, 84 P.3d 245, 247 n.3 (Wash. 2004) (en banc).
22
Id. (quotations and citation omitted).
5
with criminal intent), a defendant can be convicted of violating subsection 9A.36.021(1)(e) by merely
touching someone with intent to commit a felony, and therefore, the intentional use of force is not
an element of the offense.23 As Magdaleno recognizes, subsection 9A.36.021(1)(e) does not
criminalize mere touching. Rather, the statutory provision outlaws unlawful touching with intent to
commit a felony. Therefore, the issue is whether the government must prove the intentional use of
force to sustain a conviction of assault in the second degree for unlawful touching with intent to
commit a felony.
Under Washington law, an “unlawful touching” is a non-privileged touching that is harmful
or offensive.24 In a recent unpublished opinion, United States v. Sanchez-Torres,25 we addressed
whether a defendant’s convictions in Washington state court for assault in the fourth degree26 were
23
See United States v. Sarmiento-Funes, 374 F.3d 336, 339, 341 (5th Cir. 2004) (concluding
that a Missouri “sexual assault statute does not require that physical violence, coercion, or threats
accompany the sex act,” and that intercourse does not involve the use of physical force within the
meaning of former § 2L1.2 cmt. n.1(B)(ii)(I) “when it is accompanied by consent-in-fact”); United
States v. Houston, 364 F.3d 243, 246, 247 (5th Cir. 2004) (holding that Ҥ 4B1.2 is plainly
inapplicable because ‘use of force’ is not an element of the crime of statutory rape as defined by
Texas,” and that “sexual intercourse between a 20 year old male and a female a day under 17, free
of aggravating circumstances, such as the victim’s lack of consent or the offender’s use of violence
does not present a serious potential risk of physical injury” within the meaning of U.S.S.G. § 4B1.2);
see also United States v. Matute-Galdamez, No. 03-41728, 2004 WL 2278498, at *1 (5th Cir. Oct.
6, 2004) (unpublished opinion) (holding that the element of “sexual touching” in a Kansas
“aggravated sexual battery” offense was not an element that “require[d] the use of physical force”).
24
State v. Garcia, 20 Wash. App. 401, 403, 579 P.2d 1034 (1978) (“An assault is an attempt
to commit a battery, which is an unlawful touching; a touching may be unlawful because it was neither
legally consented to nor otherwise privileged, and was either harmful or offensive.”).
25
No. 04-40513, 2005 U.S. App. LEXIS 12021, at *6-7 (5th Cir. June 21, 2005) (unpublished
opinion).
26
Under WASH. REV. CODE. ANN. § 9A.36.041(1), “[a] person is guilty of assault in the fourth
degree if, under circumstances not amounting to assault in the first, second, or third degree, or
6
crimes of violence under U.S.S.G. § 2L1.2(b)(1)(E). We concluded that they were not because a
“Washington state prosecutor may secure a conviction for fourth degree assault by proving that there
27
was an int entional touching that [was] either ‘harmful’ or ‘offensive’.” We noted that “while a
‘harmful’ touching likely involves as an element the use, attempted use, or threatened use of
destructive or violent force . . ., an offensive touching may not involve such an element.”28 Therefore,
“the mere fact that Sanchez-Torres was convicted for fourth degree assault d[id] not demonstrate that
the use, attempted use, or threatened use of physical force is an essential element necessary to support
that conviction.”29 Because “the record [was] devoid of any additional evidence, such as the
judgment of conviction, or the plea colloquy, from which we [could] ascertain the essential elements
of Sanchez-Torres’s Washington fourth degree assault convictions, we [could] not categorically
determine those convictions to be crimes of violence under U.S.S.G. § 2L1.2(b)(1)(E).”30
In this case, ho wever, the record contains the charging document that led to Magdaleno’s
second-degree-assault conviction. Therefore, we can ascertain the essential elements of Magdaleno’s
conviction for assault in the second degree and can determine whether Magdaleno’s alleged
intentional touching was harmful or offensive. The charging document states:
RAUL MAGDALENO-SANCHEZ [is accused] of the crime of Assault in the Second
Degree, committed as follows: that the defendant RAUL MAGDALENO-SANCHEZ
in King County, Washington on or about August 19, 2002, with intent to commit the
custodial assault, he or she assaults another.”
27
Sanchez-Torres, 2005 U.S. App. LEXIS 12021, at *7.
28
Id.29
Id.30
Id.7
felony of Rape in the Second Degree, did intentionally assault [the victim]; [c]ontrary
to RCW 9A.36.021(1)(e) . . . with sexual motivation, that is: that one of the purposes
for which the defendant committed this crime was for the purpose of his sexual
gratification . . . .
Under WASH. REV. CODE. ANN. § 9A.44.050(1), “a person is guilty of rape in the second degree,
when, under circumstances not constituting rape in the first degree, the person engages in sexual
intercourse with another person: (a) [b]y forcible compulsion; or (b) when the victim is incapable of
consent by reason of being physically helpless or ment ally incapacitated . . . .” Additionally,
Magdaleno’s plea agreement stipulated that the trial “court, in sentencing, may consider as real and
material facts information . . . in [a] certification[] of probable cause.” An attached police
certification indicates that Magdaleno grabbed the victim by the hair, forced her to perform oral sex
on him, punched her repeatedly in the head, tore off her blouse and bra, pushed her face into a chain
link fence, and began strangling her before she could get away. We may not use these “explicit
factual findings . . . to which [Magdaleno] assented”31 to conclude that force is an element of the
statute, but may use them “for the limited purpose of determining which of a series of disjunctive
elements [Magdaleno]’s conviction satisfies.”32 The “conclusive records made or used in adjudicating
[Magdaleno’s] guilt”33 allow us to “pare down”34 the assault-in-the-second-degree statute under
which Magdaleno was convicted, leaving us with the offense of unlawful touching that is harmful (as
opposed to offensive) with the intent to commit a felony. Because the government can not sustain
31
United States v. Gonzalez-Chavez, 432 F.3d 334, 337 (5th Cir. 2005).
32
United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2005) (en banc).
33
Gonzalez-Chavez, 432 F.3d at 337.
34
Calderon-Pena, 383 F.3d at 259.
8
a conviction for this “pared-down” offense without proving the use of force, we conclude that
Magdaleno’s prior conviction was a crime of violence under U.S.S.G. § 2L1.2.
***
For the foregoing reasons, the sentence imposed is VACATED and the case is REMANDED
for resentencing in accord with this opinion.
9