United States v. Sanchez-Torres , 136 F. App'x 644 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 21, 2005
Charles R. Fulbruge III
No. 04-40513 Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
JOSE PEDRO SANCHEZ-TORRES
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
No. 1:04-CR-13-1
Before SMITH, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Pedro Sanchez-Torres challenges his sentence imposed
following his guilty plea to being unlawfully present in the United
States following deportation, a violation of 8 U.S.C. § 1326.
Sanchez-Torres argues that the district court plainly erred in
enhancing his base offense level by four levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(E) on the basis of his three Washington
State fourth degree assault convictions. Sanchez-Torres contends
*
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this opinion should not be published and is not precedent except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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that, based on the evidence in the record, the Government failed to
prove that his prior convictions were categorically crimes of
violence as defined by U.S.S.G. § 2L1.2.2 We agree.
BACKGROUND
The relevant facts of this case are undisputed. On January 1,
2004, Sanchez-Torres pleaded guilty and was convicted as an alien
unlawfully present in the United States following a prior
deportation. Though the probation officer originally recommended
a different sentence enhancement in his pre-sentence report,
Sanchez-Torres successfully argued that the originally recommended
enhancement was inapplicable. Consequently, the probation officer
modified the pre-sentence report and recommended that Sanchez-
Torres’s sentence be enhanced under § 2L.1.2(b)(1)(E) on the ground
that Sanchez-Torres’s three prior convictions in Washington state
for fourth degree assault were crimes of violence.
The modified pre-sentence report describes the facts in
support of the misdemeanor assault convictions in lurid detail.
Though that report indicates that Sanchez-Torres pleaded guilty to
each offense, the judgments of conviction and plea colloquies for
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Sanchez-Torres also contends that his sentence is invalid
under the Supreme Court’s recent decision in United States v.
Booker, 125 S. Ct. 738, 739 (2005), because the district court
imposed a sentence under the erroneous belief that the recommended
sentence under the Sentencing Guidelines was mandatory rather than
merely advisory. Because we vacate Sanchez-Torres’s sentence on
another ground, we need not consider whether his sentence would be
invalid under Booker. See United States v. Villegas, 404 F.3d 355,
365 (5th Cir. 2005).
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each offense are not in the record.
On April 22, 2004, the district court adopted the facts and
recommendations set forth in the modified pre-sentence report and
sentenced Sanchez-Torres to 24 months’ imprisonment, the statutory
maximum for his offense. This is because, with the four-level
enhancement under § 2L1.2 (1)(b)(E) crime of violence, the minimum
sentence in the Guidelines range for his sentence exceeded the
statutory maximum, and pursuant to § 5.G1.1(a), in such an
instance, the statutory maximum becomes the “Guideline sentence.”
Though Sanchez-Torres raised no objection to his crime of violence
sentence enhancement during sentencing, he timely appeals.
ANALYSIS AND CONCLUSIONS
Because Sanchez-Torres did not raise his legal objection to
the imposition of the four-level sentence enhancement in district
court, this court’s review of that sentence enhancement is for
plain error. See, e.g., United States v. Aderholt, 87 F.3d 740,
743 (5th Cir. 1996); cf. United States v. Booker, 125 S. Ct. 738,
769 (2005)(instructing appellate courts to apply ordinary
prudential doctrines such as plain-error review). Plain error
occurs when: (1) there was an error; (2) the error was clear and
obvious; and (3) the error affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732-37 (1993); United
States v. Mares, 402 F.3d 515, 520 (5th Cir. 2005). “If all three
conditions are met, an appellate court may then exercise its
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discretion to notice a forfeited error but only if the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Mares, 402 F.3d at 520 (quoting United
States v. Cotton, 535 U.S. 625, 631, 152 L. Ed. 2d 860, 122 S. Ct.
1781 (2002)).
This court has recently held that the usual de novo standard
of review for a district court’s application of the Guidelines
remains unchanged following Booker. United States v. Villegas, 404
F.3d 355, 359 (5th Cir. 2005). Thus, in determining whether there
was plain error in the district court’s application of the
Guidelines, that application is reviewed de novo. Id. at 363.
U.S.S.G. § 2L1.2(b)(1)(E) states that a defendant’s base
offense level should be increased four levels if he “previously was
deported, or unlawfully remained in the United States, after . .
.three or more convictions for misdemeanors that are crimes of
violence or drug trafficking offenses.” U.S.S.G. § 2L1.2(b)(1)(E).
“Crime of violence” is defined to include “any offense under
federal, state, or local law that has an element the use, attempted
use, or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii); see United States v.
Vargas-Duran, 356 F.3d 598, 599-600 (5th Cir.) (en banc), cert.
denied, 124 S. Ct. 1728 & 125 S. Ct. 494 (2004); United States v.
Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc), cert.
denied, 135 S. Ct. 932 (2005).
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Under this court’s en banc decision in Calderon-Pena, and the
categorical approach mandated by the Guidelines, the facts of a
particular offense should not be used to determine whether a prior
conviction of a non-enumerated offense is a conviction for a crime
of violence. Calderon-Pena, 383 F.3d at 257. Instead, the relevant
question is whether the elements of that offense, involve the “use,
attempted use, or threatened use of force against the person of
another,” and the elements of an offense are found in the statute
of conviction. Calderon-Pena, 383 F.3d at 256-57. In order for an
offense to qualify as a crime of violence “the intentional use of
force must be a ‘constituent part of a claim that must be proved
for the claim to succeed.’” Vargas-Duran, 356 F.3d at 605 (quoting
Black’s Law Dictionary 538 (7th ed. 1999)). “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.” Id.
In Washington state, a person commits assault in the fourth
degree if “under circumstances not amounting to assault in the
first, second, or third degree, or custodial assault, he or she
assaults another.” WASH. REV. CODE ANN. § 9A.36.041(1) & (2) (West
2004). Because the term “assault” is not defined by statute,
Washington courts apply the common law definition of assault. See
Clark v. Baines, 84 P.3d 245, 247 n.3. (Wash. 2004). Thus, in
Washington, there are three recognized definitions of assault: “(1)
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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.” Id. Based
on these common law definitions as well as the Washington assault
statutes, a person commits assault in the fourth degree when the
intentional touching is harmful or offensive but does not involve:
(1) great bodily harm or a weapon; (2) recklessly inflicted bodily
injury that is substantial; (3) negligently inflicted bodily injury
or injury resulting in substantial pain and suffering. See WASH.
REV. CODE. ANN. §§ 9A.36.011 (describing assault in the first
degree); 9A.36.021 (describing assault in the second degree);
9A.36.031 (assault in the third degree). Accordingly, we conclude
that a Washington state prosecutor may secure a conviction for
fourth degree assault by proving that there was an intentional
touching that is either “harmful” or “offensive.” Washington v.
Plush, 2000 Wash. App. LEXIS 209 at *5 (Wash. Ct. App.
2000)(affirming conviction for assault because spitting on an
officer was an offensive intentional unlawful touching); Washington
v. C.D., 2002 Wash. App. LEXIS 2873 (Wash. Ct. App. 2002)(affirming
conviction for assault because touching of complainant’s breast and
buttocks could be an offensive touching).
This court has previously stated that the use of force element
of a crime of violence involves “destructive or violent force.”
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United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.
2001). Consequently, while a “harmful” touching likely involves as
an element the use, attempted use, or threatened use of destructive
or violent force against the person of another necessary to qualify
for a crime of violence sentence enhancement under U.S.S.G. §
2L1.2, an offensive touching may not involve such an element. See,
e.g., Plush, 2000 Wash. App. LEXIS 209 at *5; C.D., 2002 Wash. App.
LEXIS 2873. Hence, the mere fact that Sanchez-Lopez was convicted
for fourth degree assault in Washington state does not demonstrate
that the use, attempted use, or threatened use of physical force
against the person of another was an essential element necessary to
support that conviction. See Vargas-Duran, 356 F.3d at 605. Given
that the record is devoid of any additional evidence, such as the
judgment of conviction, or the plea colloquy, from which we may
ascertain the essential elements of Sanchez-Torres’s Washington
fourth degree assault convictions, we cannot categorically
determine those convictions to be crimes of violence under U.S.S.G.
§ 2L1.2(b)(1)(E). See United States v. Martinez-Paramo, 380 F.3d
799, 801, 805-06 (5th Cir. 2004). Thus, it was error to apply the
four-level crime of violence enhancement in this case based on
merely the existence of those convictions. See United States v.
Rodriguez-Rodriguez, 388 F.3d 466, 470 (5th Cir. 2004); United
States v. Alfaro, 2005 U.S. App. LEXIS 7325, *11 (5th Cir. 2005).
Because we have determined that it was error to apply the
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four-level crime of violence enhancement to Sanchez-Torres’s
sentence, and because that error is obvious under this Circuit’s
precedent, Sanchez-Torres has met the first two prongs of the plain
error test. See Villegas, 404 F.3d at 364; Alfaro, 2005 U.S. App.
LEXIS at *11-12. As the parties do not dispute that his sentence
is significantly longer with the enhancement (24 months) than
without (likely between 12 and 18 months) and there is no overlap,
Sanchez-Torres has also established the third prong of the plain
error test–viz. that the error affected his substantial rights and
affected the fairness, integrity, or public reputation of the
judicial proceedings. Villegas, 404 F.3d at 364; Alfaro, 2005 U.S.
App. LEXIS at *11-12. Finding plain error, we accordingly VACATE
Sanchez-Torres’s sentence and REMAND to the district court for re-
sentencing.
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