United States v. Palomares-Candela , 104 F. App'x 957 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 14, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________ Clerk
No. 03-10535
______________________
UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
JUAN ARTURO PALOMARES-CANDELA
Defendant-Appellant
___________________________________________________
Appeal from the United States District Court for
the Northern District of Texas, San Angelo Division
(USDC No. 6:02-CR-051)
_________________________________________________________________
___________________________________________________
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
DENNIS, Circuit Judge:*
Juan Palomares-Candela (“Candela”) appeals the sentence
stemming from his conviction for being found unlawfully in the U.S.
subsequent to deportation. Candela argues that the district court
erred in applying a 16-level enhancement based on its conclusion
that Candela had been convicted of a crime of violence prior to his
deportation. We vacate the sentence and remand for re-sentencing.
*
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this opinion should not be published and is not precedent except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.
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BACKGROUND
On March 13, 2003, Candela pleaded guilty to being found
unlawfully in the United States subsequent to deportation. The
presentence report (“PSR”) assessed a base level of 8 pursuant to
U.S.S.G. § 2L1.2. The PSR added 16 levels pursuant to section
2L1.2(b)(1)(A) because, the PSR alleged, Candela had been convicted
of a “crime of violence” prior to his deportation. In 1993,
Candela pleaded guilty to attempted second degree sexual assault in
Colorado (the “prior offense”); he was deported in 2001. Taking
into account a three-level reduction for acceptance of
responsibility, resulting in a total offense level of 21, and a
criminal history category of IV, the guideline sentencing range was
57 to 71 months. The district court sentenced Candela to 71 months
to be followed by 3 years of supervised release. Candela timely
appealed.
The Prior Offense
At the time of Candela’s prior offense, Colorado defined
sexual assault in the second degree as follows:
(1) An actor who knowingly inflicts sexual
penetration or sexual intrusion on a victim commits
sexual assault in the second degree if:
(a) The actor causes submission of the victim to
sexual penetration by any means other than those
set forth in section 18-3-402, but of sufficient
consequence reasonably calculated to cause
submission against the victim’s will; or
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(b) The actor causes submission of the victim to
sexual intrusion by any means other than those set
forth in section 18-3-402, but of sufficient
consequence reasonably calculated to cause
submission against the victim’s will; or
(c) The actor knows that the victim is incapable of
appraising the nature of the victim’s conduct; or
(d) The actor knows that the victim submits
erroneously, believing the actor to be the victim’s
spouse; or
(e) At the time of the commission of the crime, the
victim is less than fifteen years of age and the
actor is at least four years older than the victim
and is not the spouse of the victim; or
(f) Repealed, L. 90, p. 1033, 25 effective July 1,
1990.
(g) The victim is in custody of law or detained in
a hospital or other institution and the actor has
supervisory or disciplinary authority over the
victim and uses this position of authority, unless
the sexual intrusion is incident to a lawful
search, to coerce the victim to submit; or
(h) The actor engages in treatment or examination
of a victim for other than bona fide medical
purposes or in a manner substantially inconsistent
with reasonable medical practices.
(2) Sexual assault in the second degree is a class
4 felony.
COLO. REV. STAT. § 18-3-403 (1992). Further, Colorado’s criminal
attempt statute dictates that “a person commits a criminal attempt
if, acting with the kind of culpability otherwise required for
commission of an offense, he engages in conduct constituting a
substantial step toward the commission of the offense.” COLO. REV.
STAT. § 18-2-101 (1992).
The “complaint/information” charging Candela with attempted
second degree sexual assault does not specify which subsection of
the statute Candela allegedly violated. Instead, it simply states
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that “on the 3rd day of October, A.D. 1992 ... JUAN A. PALOMARES did
unlawfully and feloniously attempt to commit the crime of 2nd degree
Sexual Assault ... and did engage in conduct constituting a
substantial step toward the commission of said crime.”1 Candela
pleaded guilty to the charge, was convicted, and was sentenced to
two years of probation.
ANALYSIS
Standard of Review
Candela agrees that, because he did not object to the
increased offense level at trial, the enhancement is reviewed for
plain error. United States v. Gracia-Cantu, 302 F.3d 308, 313 (5th
Cir. 2002). “Plain error is defined as (1) an error; (2) that is
clear or plain; (3) that affects the defendant’s substantial
rights; and (4) that seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). The imposition of a 16-
level enhancement for a prior offense that does not fall within
that sentencing guidelines’ definition of a “crime of violence”
1
Candela filed a motion to supplement the record on appeal
requesting permission to add the documents charging him with
attempted second degree sexual assault in Colorado as well as the
judgment convicting him. This court has the authority to
supplement the record on appeal, even though the materials were
not reviewed by the district court. See Gibson v. Blackburn, 744
F.2d 403, 405 n.3 (5th Cir. 1984) ("Although a court of appeals
will not ordinarily enlarge the record to include material not
before the district court, it is clear that the authority to do
so exists."). Because these materials inform our analysis, we
grant Candela’s motion to supplement the record.
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affects the substantial rights of the defendant and the integrity
of the judicial proceedings. Gracia-Cantu, 302 F.3d at 313. Thus,
the question is reduced to whether the enhancement is an error that
is clear or plain.
“Crime of Violence”
The sentencing guidelines provide for a 16-level enhancement
for persons convicted of unlawfully entering or remaining in the
United States who were previously deported after a conviction for
a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(2). The comments
to this guideline define “crime of violence” as follows.
“Crime of violence”-
(I) means 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; and
(II) includes 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, comment n.1(B)(ii).
A conviction only falls under the first paragraph if an
element of the prior offense requires an intentional use of force.
United States v. Vargas-Duran, 356 F.3d 598, 599-600 (5th Cir.
2004). The government concedes that Candela’s prior conviction
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does not contain an element requiring the intentional use of force
and, thus, does not qualify as a crime of violence under the first
paragraph. The second paragraph enumerates certain crimes,
including “forcible sex offenses,” that are per se crimes of
violence without regard to whether they have the use of force as an
element. See U.S. v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir. 2002)
(“the offenses listed in subparagraph II need not show actual,
attempted, or threatened use of force, for the precise reason that
they are explicitly listed”). The government contends that second
degree sexual assault constitutes a “forcible sex offense” and,
therefore, that the district court did not clearly err in
concluding that Candela was convicted of a crime of violence.
“Forcible Sex Offense”
The guidelines do not define the term “forcible sex offense.”
But this court has recently wrestled with the meaning of this term
within the context of Guideline 2L1.2.
[W]hen one specifically designates a sex offense as
a "forcible" sex offense, one probably does so in
order to distinguish the subject sex offense as one
that does require force or threatened force
extrinsic to penetration.
United States v. Sarmiento-Funes, 2004 U.S. App. LEXIS 12205, at
*23-24 (5th Cir. June 21, 2004).
The prior offense at issue in Sarmiento-Funes was a 2002
Missouri conviction for "sexual assault,” which the state defined
as follows: "A person commits the crime of sexual assault if he has
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sexual intercourse with another person knowing that he does so
without that person's consent." MO. ANN. STAT. § 566.040(1) (West
1999). Id. at *1-2. The court explained:
Although the Missouri sexual assault statute speaks
of intercourse “without consent,” the state
statutes explicitly distinguish between “assent”
and “consent,” providing that “assent” sometimes
does not count as “consent.” The Missouri sexual
assault statute therefore reaches intercourse to
which the victim assents, though that assent is a
legal nullity, such as when it is the product of
deception or a judgment impaired by intoxication.
Id. at *11. The court further noted that, in United States v.
Houston, 364 F.3d 243, 246 (5th Cir. 2004), this court held that
illegal intercourse with consent-in-fact, i.e. assent, does not
involve the use of force and thus does not fall under the first
paragraph. Id. at *12.
The court concluded that Sarmiento-Funes’ prior offense for
sexual assault in Missouri likewise could not be considered a
forcible sex offense under the second paragraph because “the
adjective ‘forcible’ centrally denotes a species of force that
either approximates the concept of forcible compulsion or, at
least, does not embrace some of the assented-to-but-not-consented-
to conduct at issue here.” Id. at *22-23. The court surmised that
“the phrase ‘forcible sex offense’ used in paragraph (II) of §
2L1.2 cmt. n.1(B)(ii) may well be a term of art that encompasses a
narrower range of conduct than does paragraph (I)'s general
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definition referring to crimes that ‘have as an element the use,
attempted use, or threatened use of physical force against the
person of another.’" Id. at *24.
The Colorado statute at issue here is similar to the Missouri
statute in that there are non-forcible ways to violate the
statute.2 For example, the perpetrator may be an 18 year old male
having sexual relations with a female one day younger than 15. Cf.
Houston, 364 F.3d at 247 (holding that consensual sexual
intercourse between a 20 year old male and a female a day under 17
does not present a serious potential risk of physical injury). Or
the perpetrator may simply fool the victim into believing that they
are married, in which case the victim is also assenting, or
consenting in fact, although the victim’s consent is not legally
effective.
Because there are non-forcible ways to violate the Colorado
statute, Candela’s prior conviction cannot be said to constitute a
forcible sex offense. As the Colorado statute does not contain an
2
As noted above, the charging instrument is silent as to
which subsection of the statute Candela allegedly violated in
committing the prior offense. Thus, even reference to the
indictment would not change our conclusion. If an indictment is
silent as to the offender’s actual conduct, we will proceed under
the assumption that his conduct constituted the least culpable
act satisfying the count of conviction. Houston, 364 F.3d at
246. While one could argue about what constitutes the least
culpable act violating the Colorado statute, it is nevertheless
clear that the Colorado statute is similar to the Missouri
statute in that there are non-forcible ways to violate the
statute.
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element requiring the intentional use of force and as Candela’s
prior conviction cannot be classified as a forcible sex offense,
the district court clearly erred in concluding that Candela’s prior
conviction constituted a crime of violence.
CONCLUSION
Candela’s prior conviction was not for an offense that
contained an element requiring the intentional use of force and
also cannot be classified as a conviction for a forcible sex
offense. The district court therefore clearly erred in applying
the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(2); and,
for the reasons stated above, that error meets the definition of
plain error because it affects Candela’s substantial rights and
seriously affects the fairness, integrity, or public reputation of
the judicial proceedings. We VACATE Candela’s sentence and REMAND
this case to the district court for RE-SENTENCING.
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