United States v. Hernandez-Rodriguez , 467 F.3d 492 ( 2006 )


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  •                                                                United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    October 9, 2006
    FOR THE FIFTH CIRCUIT
    _____________________                  Charles R. Fulbruge III
    Clerk
    No. 05-51429
    _____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JESUS HERNANDEZ-RODRIGUEZ,
    Defendant-Appellant.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Western District o Texas
    USDC No. 2:05-CR-124-ALL
    _________________________________________________________________
    Before JOLLY, DAVIS, and WIENER, Circuit Judges.
    PER CURIAM:
    Jesus Hernandez-Rodriguez appeals from the sentence imposed
    upon his conviction for illegal reentry in violation of 8 U.S.C. §
    1326(a). He contends that the district court erred in finding that
    his conviction under Texas Penal Code § 22.05(b)(1) triggered the
    16-level     crime-of-violence      adjustment       under   the     sentencing
    guideline § 2L1.2(b)(1)(A)(ii).         Hernandez-Rodriguez also argues
    that, in the light of Apprendi v. New Jersey, 
    530 U.S. 466
    (2000),
    his   §   1326   sentence   was   limited   to   a   maximum   two    years    of
    imprisonment.     For the forthcoming reasons, we AFFIRM the judgment
    of the district court.
    I
    Jesus Hernandez-Rodriguez pled guilty before a magistrate
    judge   to   illegal     reentry.          The      district   court      adopted       the
    magistrate judge’s recommendation and accepted the guilty plea.
    The probation officer who prepared the presentence report (“PSR”)
    assigned Hernandez-Rodriguez a base offense level of eight pursuant
    to the United States Sentencing Guidelines § 2L1.2.                        His offense
    level was increased by 16 levels, under § 2L1.2(b)(1)(A)(ii)
    because of his prior conviction for a crime of violence.                        According
    to the PSR, Hernandez-Rodriguez pled guilty in 1996 to the crime of
    “deadly conduct” in Houston, Texas.
    The PSR awarded a three-level decrease for acceptance of
    responsibility, resulting in a total offense level of 21.                                It
    determined Hernandez-Rodriguez’s criminal history category to be
    IV, subjecting him to an advisory guidelines range of 57 to 71
    months of imprisonment.
    At sentencing, Hernandez-Rodriguez objected to the 16-level
    increase on the grounds that his conviction for deadly-conduct did
    not qualify as a “crime of violence” under § 2L1.2(b)(1)(A)(ii).
    The district court overruled this objection but, on motion from
    Hernandez-Rodriguez, it departed downward to an offense level of 19
    based   on   a   finding    of        cultural      assimilation.         See    U.S.    v.
    Rodriguez-Montelongo,           
    263 F.3d 429
    ,   433-444   (5th    Cir.    2001)
    (holding that the district court had discretion to consider a
    downward     departure     on    the     basis      of   defendant’s      demonstrated
    2
    cultural assimilation).     This departure resulted in a guidelines
    sentencing range of 46 to 57 months.          The district court sentenced
    Hernandez-Rodriguez to 48 months of imprisonment, followed by three
    years of supervised release.        He timely appealed.
    II
    This case presents the question whether the district court
    properly   construed    Hernandez-Rodriguez’s        Texas     deadly-conduct
    conviction   as    a   crime      of    violence    for     purposes     of    §
    2L1.2(B)(1)(A)(ii)     16-level    sentence     enhancement.      This   court
    applies de novo review when considering this legal issue.                     See
    United States v. Izaguirre-Flores, 
    405 F.3d 270
    , 272 (5th Cir.),
    cert. denied, 
    126 S. Ct. 253
    (2005).
    Section 2L1.2 of the Guidelines provides that the offense
    level for unlawfully entering or remaining in the United States
    shall be increased by 16 levels if the defendant has a prior
    conviction for a “crime of violence.”           See § 2L1.2(b)(1)(A)(ii).
    The commentary to § 2L1.2 defines “crime of violence” as: (1) any
    specified enumerated offense or (2) “any 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.”
    § 2L1.2, comment. (n.(1)(B)(iii)). Neither party contends that the
    deadly-conduct    offense   could      be   characterized    as   one   of    the
    enumerated offenses; thus, the 16-level increase is warranted only
    if Hernandez-Rodriguez’s Texas deadly-conduct offense qualifies as
    a crime of violence because it has as an element “the use,
    3
    attempted use, or threatened use of physical force against the
    person of another.”       See United States v. Rodriguez-Rodriguez, 
    388 F.3d 466
    ,    467   (5th    Cir.    2004)   (internal    quotation    marks   and
    citation omitted).
    “When determining whether a prior offense is a crime of
    violence because it has as an element the use, attempted use, or
    threatened   use    of    force,     district    courts    must     employ   the
    categorical approach established in Taylor v. United States, 
    495 U.S. 575
    , 602 (1990).”       United States v. Bonilla-Mungia, 
    422 F.3d 316
    , 320 (5th Cir.), cert. denied, 
    126 S. Ct. 819
    (2005); United
    States v. Calderon-Pena, 
    383 F.3d 254
    , 257 (5th Cir. 2004) (en
    banc), cert. denied, 
    125 S. Ct. 932
    (2005).            “If a statute contains
    multiple, disjunctive subsections, courts 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.” United States v. Gonzalez-
    Chavez, 
    432 F.3d 334
    , 337 (5th Cir. 2005) (internal quotation marks
    and citation omitted). “These records are generally limited to the
    ‘charging document, written plea agreement, transcript of the plea
    colloquy, and any explicit factual finding by the trial judge to
    which the defendant assented.’”            
    Id. at 337-38
    (citing Shepard v.
    United States, 
    544 U.S. 13
    , 16 (2005)).
    Texas law defines the crime of deadly conduct in pertinent
    part as follows:
    4
    (a) A person commits an offense if he
    recklessly engages in conduct that places
    another in imminent danger of serious bodily
    injury.
    (b) A person commits an offense if he
    knowingly discharges a firearm at or in the
    direction of:
    (1) one or more individuals; or
    (2) a habitation, building, or vehicle and is
    reckless as to whether the habitation,
    building, vehicle is occupied.
    (c) Recklessness and danger are presumed if
    the actor knowingly pointed a firearm at or in
    the direction of another whether or not the
    actor believed the firearm to be loaded.
    TEX. PENAL CODE ANN. § 22.05 (Vernon 2003). The indictment indicates,
    and the parties agree, that Hernandez-Rodriguez was convicted of
    violating § 22.05(b)(1).1
    III
    Hernandez-Rodriguez argues that, because a conviction under §
    22.05(b)(1) can be obtained by merely discharging a firearm in the
    general direction of a person rather than at the person, the use of
    1
    Prior to 1994, § 22.05(b) created the presumption of
    recklessness currently found at § 22.05(c). See United States v.
    White, 
    258 F.3d 374
    , 382-83 (5th Cir. 2001). This court held that
    an offense under § 22.05(b), as it previously existed, was not a
    domestic crime of violence for purposes of 18 U.S.C. §
    921(a)(33)(A)(ii) because it did not require the threatened use of
    a deadly weapon against another person. 
    White, 258 F.3d at 383
    .
    White is distinguishable from the instant case, however, because §
    22.05(b) as it existed at the time of White required only that the
    defendant have “knowingly pointed a firearm at or in the direction
    of another ....” 
    Id. at 381
    (emphasis added). The revised version
    of § 22.05(b) requires that the defendant have actually discharged
    the firearm. TEX. PENAL CODE ANN. § 22.05 (Vernon 2003).
    5
    force is not a requisite element of the offense.               He analogizes to
    this court’s decision in United States v. Alfaro, 
    408 F.3d 204
    (5th
    Cir.), cert. denied, 
    126 S. Ct. 271
    (2005).            In Alfaro, this court
    considered whether a conviction under VA. CODE ANN. § 18.2-279, for
    shooting into     an   occupied      dwelling,     qualified    as    a   crime   of
    violence for purposes of § 2L1.2.               
    Alfaro, 408 F.3d at 208-09
    .
    This court found that the offense was not a crime of violence
    because “a defendant could violate th[e] statute merely by shooting
    a gun at a building that happens to be occupied without actually
    shooting, attempting to shoot, or threatening to shoot another
    person.”    
    Id. at 209.
    Alfaro is distinguishable from this case.                      The Virginia
    statute outlawed discharging a firearm inside or at an occupied
    building in such a manner as to endanger the life of another
    person. See § 18.2-279; 
    Alfaro, 408 F.3d at 208-09
    .                  Following the
    categorical approach, the court in Alfaro focused on the fact that
    the Virginia statute “did not require the use, the threatened use,
    or attempted use of force against the person of another.”                    
    Id. at 209
    (emphasis in original).
    The Virginia statute in Alfaro is more analogous to TEX. PENAL
    CODE ANN. § 22.05(b)(2), which outlaws discharging a firearm at or
    in   the   direction   of    a    habitation,    building,     or    vehicle   with
    reckless    disregard       for    whether   the    structure       is    occupied.
    Hernandez-Rodriguez, however, was convicted under § 22.05(b)(1),
    which requires that a defendant discharge a firearm at or in the
    6
    direction of one or more individuals.           Thus, the Texas statute,
    unlike that in Alfaro, requires that a firearm be discharged at or
    in the direction of another person.            Alfaro is not controlling
    here.
    Hernandez-Rodriguez      maintains   that   an     offense   under   §
    22.05(b)(1) is not a crime of violence because “if the defendant
    knowingly chooses to shoot not at an individual, but merely in the
    individual’s direction, he is decidedly not using force against the
    person of another.”        This argument is unavailing.             An offense
    qualifies as a crime of violence if it includes as an element “the
    use, attempted use, or threatened use of physical force against the
    person of another.”       § 2L1.2, comment. (n.(1)(B)(iii)) (emphasis
    added). Whereas the knowing pointing of a firearm at another “when
    done in obvious jest would not necessarily constitute threatened
    use   of   a   deadly   weapon,”      
    White, 258 F.3d at 384
    ,   it   is
    unreasonable to conclude that the purposeful discharge of that
    weapon in the direction of a person would not “import[] ‘[a]
    communicated intent to inflict physical or other harm.’”                  
    Id. at 383
    (quoting BLACK’S LAW DICTIONARY 1480 (6th ed. 1990)). This element
    of a conscious choice to discharge a firearm in the direction of an
    individual would constitute a real threat of force against his
    person.2 The offense of deadly conduct, as defined in TEX. PENAL CODE
    2
    Because the statute requires proof of “knowing” conduct as
    an element of the offense, there is no possibility of conviction on
    the basis of reckless or negligent behavior. See Brief for the
    United States at 8.
    7
    ANN. § 22.05(b)(1), therefore constitutes a crime of violence for
    purposes of sentence enhancement under § 2L1.2(b).
    IV
    Hernandez-Rodriguez also challenges the constitutionality of
    §    1326(b)’s   treatment   of   prior   felony   and   aggravated   felony
    convictions as sentencing factors rather than elements of the
    offense that must be found by a jury in the light of Apprendi v.
    New Jersey, 
    530 U.S. 466
    (2000).          This argument is foreclosed by
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 235 (1998).
    “This court has repeatedly rejected arguments like the one made by
    [Hernandez-Rodriguez] and has held that Almendarez-Torres remains
    binding despite Apprendi.”        United States v. Garza-Lopez, 
    410 F.3d 268
    , 276 (5th Cir.), cert. denied, 
    126 S. Ct. 298
    (2005).
    V
    For the foregoing reasons, the judgment of the district court
    is
    AFFIRMED.
    8