United States v. Licon-Nunez , 230 F. App'x 448 ( 2007 )

United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS
for the Fifth Circuit FILED
June 7, 2007
Charles R. Fulbruge III
No. 06-50745 Clerk
UNITED STATES,
Plaintiff-Appellee,
VERSUS
JUAN ALFREDO TREJO LICON-NUNEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:06-CR-323-1)
Before KING, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant Juan Alfredo Trejo Licon-Nunez (“Licon-Nunez”)
appeals the district court’s imposition of a fifty-seven-month
term of imprisonment following his guilty plea conviction for
illegal reentry after deportation. He argues that the district
*
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that this opinion should not be published and is not precedent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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court erred by increasing his offense level by sixteen levels
based on a determination that his prior guilty plea conviction in
New Mexico for aggravated assault with a deadly weapon was a
crime of violence under U.S.S.G. § 2L1.2. He further argues that
the district court erred by refusing to consider as a sentencing
factor his benign motive for reentering the United States--to
find employment to pay for his daughter’s medical treatment.
Licon-Nunez also challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than as elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Finding no error, we affirm.
I.
In February 2006, Licon-Nunez was charged with illegal
reentry after deportation in violation of 8 U.S.C. § 1326(a). The
Government filed a Notice of Intent to Seek an Increased
Statutory Penalty under 8 U.S.C. § 1326(b)(2) based on Licon-
Nunez’s prior guilty plea conviction in New Mexico for aggravated
assault with a deadly weapon. In March 2006, Licon-Nunez pleaded
guilty without a plea agreement to the charged offense of illegal
reentry after deportation.
Prior to sentencing, Licon-Nunez filed a motion to dismiss
the penalty enhancement and an objection to the imposition of a
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sentence greater than two years, arguing that he was only subject
to the two-year penalty set out in § 1326(a), not the increased
penalty set out in § 1326(b), because his indictment did not
allege the prior commission of a crime of violence and he did not
plead guilty to the same. He cited Apprendi v. New Jersey, 530
U.S. 466 (2000), in support of his argument, but conceded that
his argument was foreclosed by Fifth Circuit precedent. The court
denied his motion.
The presentence report (PSR) recommended that Licon-Nunez’s
base offense level of eight be increased by sixteen levels under
U.S.S.G. § 2L1.2 based on his prior guilty plea conviction in New
Mexico for a crime of violence, to wit, aggravated assault with a
deadly weapon. The PSR also recommended a three-level reduction
for acceptance of responsibility, resulting in a total offense
level of twenty-one. With a total offense level of twenty-one and
a Criminal History Category IV, Licon-Nunez’s Guidelines
sentencing range was fifty-seven to seventy-one months.
In his written objections to the PSR, Licon-Nunez renewed
his Apprendi objection to a penalty enhancement and also objected
to the sixteen-level crime of violence enhancement, asserting
that his prior conviction was not a crime of violence under
§ 2L1.2 because it was not an enumerated offense and it did not
include an element of force. He also sought a downward departure
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or variance based on the fact that he reentered the United States
to find employment to pay for his daughter’s medical treatment.
The district court determined at the sentencing hearing that
Licon-Nunez’s prior offense of aggravated assault was an
enumerated offense and also that the allegation in the indictment
that he assaulted or struck the victim with a deadly weapon, a
knife, was sufficient to show an element of force. The district
court also overruled Licon-Nunez’s Apprendi objection and denied
his request for a downward departure. Licon-Nunez filed a timely
notice of appeal.
II.
A.
In his first point of error, Licon-Nunez argues that the
district court erred in applying a sixteen-level enhancement
under U.S.S.G. § 2L1.2 because his New Mexico conviction does not
qualify as a crime of violence. This Court reviews the district
court’s interpretation of the Sentencing Guidelines de novo.
United States v. Sarmiento-Funes, 374 F.3d 336, 338 (5th Cir.
2004). Section 2L1.2(b)(1)(A)(ii) provides for a sixteen-level
enhancement when the defendant was previously deported after a
conviction for a crime of violence. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). A crime of violence, as defined in the
commentary to that section, includes various enumerated offenses,
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including “aggravated assault,” and “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.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii); see also United States
v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007). Licon-Nunez’s
New Mexico conviction qualifies as a crime of violence if it
meets either of these definitions. Dominguez, 479 F.3d at 347.
Because we find that the New Mexico conviction “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” we do not consider whether it
qualifies as the enumerated offense of aggravated assault.
Under the New Mexico aggravated assault statute, a person
commits aggravated assault by
A. unlawfully assaulting or striking at another with a
deadly weapon;
B. committing assault by threatening or menacing
another while wearing a mask, hood, robe or other
covering upon the face, head or body, or while
disguised in any manner, so as to conceal identity; or
C. willfully and intentionally assaulting another with
intent to commit any felony.
N.M. STAT. ANN. § 30-3-2. Licon-Nunez’s indictment tracked the
language of § 30-3-2A, charging that he “did assault or strike at
Cesar Esparza with a deadly weapon, to wit: a knife, a fourth
degree felony contrary to Section 30-3-2A NMSA 1978.” The New
Mexico Uniform Jury Instructions indicate that to be convicted of
aggravated assault by use of a deadly weapon, a defendant must
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(1) try to touch or apply force to the victim, (2) act in a rude,
insolent, or angry manner, (3) use a deadly weapon, and (4)
intend to touch or apply force to the victim. NEW MEXICO UNIFORM
JURY INSTRUCTIONS--CRIMINAL 14-304.
This Court employs a categorical approach in determining
whether an offense qualifies as a crime of violence under
§ 2L1.2. Dominguez, 479 F.3d at 347 (citing United States v.
Chapa-Garza, 243 F.3d 921, 924 (5th Cir. 2001)). Under that
approach, “we examine the elements of the offense, rather than
the facts underlying the conviction or the defendant’s actual
conduct, to determine whether an offense meets the definition of
a crime of violence.” Id. (citing United States v. Calderon-Pena,
383 F.3d 254, 257-58 (5th Cir. 2004) (en banc), cert. denied, 543
U.S. 1076 (2005)). If the statute of conviction contains a series
of disjunctive elements, “‘a court may look to the indictment or
jury instructions, for the limited purpose of determining which
of a series of disjunctive elements a defendant’s conviction
satisfies.’” Id. (quoting Calderon-Pena, 383 F.3d at 258).
As mentioned above, Licon-Nunez’s indictment charged that he
“did assault or strike at Cesar Esparza with a deadly weapon, to
wit: a knife, a fourth degree felony contrary to Section 30-3-2A
NMSA 1978.” Thus, his offense has two elements: (1) the unlawful
assaulting or striking at another and (2) the use of a deadly
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weapon. The New Mexico Uniform Jury Instructions clarify that the
“the unlawful assaulting or striking at another” element requires
that the defendant try to and intend to touch or apply force to
the victim while acting in a rude, insolent, or angry manner. We
have not previously considered whether the New Mexico crime of
aggravated assault by use of a deadly weapon requires as an
element the use, attempted use, or threatened use of physical
force against the person of another. Licon-Nunez argues that the
offense does not require an element of force because it can be
committed by via offensive touching rather than via the
application of force. He distinguishes offensive touching from
touching involving injury to the victim, and cites Fifth Circuit
precedent questioning whether offensive touching alone requires
an element of force.
We have recently held that the offensive touching of an
individual with a deadly weapon creates a sufficient threat of
force to qualify as a crime of violence. Dominguez, 479 F.3d at
348. In Dominguez, the Court considered whether the Florida
offense of aggravated battery by use of a deadly weapon, which
can be committed via the intentional touching of a victim with a
deadly weapon, was a crime of violence. The Court determined that
even though an intentional touching with a deadly weapon might
not itself cause injury, as required for an actual use of force,
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“it could lead to more violent contact, or could at least put the
victim on notice of the possibility that the weapon will be used
more harshly in the future, thereby constituting a threatened use
of force.” Id. at 349. We think the same may be said of the New
Mexico crime of aggravated assault by use of a deadly weapon.
While the New Mexico crime differs from the crime in Dominguez
because the former does not require an actual touching, the
attempt to offensively touch a victim with a deadly weapon
combined with the intent to do the same is enough to give rise to
a threatened use of force under the reasoning in Dominguez. Thus,
Licon-Nunez’s conviction for aggravated assault by use of a
deadly weapon qualifies as a crime of violence warranting a
sentence enhancement under § 2L1.2.
B.
In his second point of error, Licon-Nunez argues that the
district court erred by failing to consider as a sentencing
factor under 18 U.S.C. § 3553(a) his alleged benign motive for
reentering the United States. Post-Booker, we review a district
court’s sentence for reasonableness. United States v. Booker, 543
U.S. 220, 261-63 (2005); United States v. Mares, 402 F.3d 511,
520 (5th Cir.), cert denied, 126 S. Ct. 43 (2005). Although
district courts have considerable discretion in sentencing post-
Booker, they remain bound to consider the Sentencing Guidelines
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and the sentencing factors set forth in 18 U.S.C. § 3553(a).
Mares, 402 F.3d at 518-19. This duty to consider the Guidelines
includes a duty to calculate and consider the Guidelines
sentencing range. United States v. Charon, 442 F.3d. 881, 886
(5th Cir.), cert. denied, 127 S. Ct. 260 (2006).
Despite Licon-Nunez’s contention, the district court did
consider Licon-Nunez’s alleged benign motive for reentering the
United States. Licon-Nunez filed a written objection to the PSR
requesting a downward departure on the basis of his family-
oriented motive. And at his sentencing hearing, Licon-Nunez’s
attorney addressed the basis for the objection and Licon-Nunez
took the stand to explain his situation. Only then did the
district court deny Licon-Nunez’s request for a downward
departure.
Assuming without deciding that Licon-Nunez’s family-oriented
motive is an appropriate sentencing factor under § 3553(a), we
are not persuaded that his sentence is unreasonable. Although the
district court did not explicitly state at sentencing that it had
considered all of the § 3553(a) factors in reaching its decision,
“[a] district court is not required to give ‘a checklist
recitation of the section 3553(a) factors.’” United States v.
Washington, 480 F.3d 309, 314 (5th Cir. 2007) (quoting United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006)). When a
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district court imposes a Guidelines sentence, it does not have to
articulate its reasons as thoroughly as when it imposes a non-
Guidelines sentence. Smith, 440 F.3d at 707. Congress never
intended sentencing “to become a hyper-technical exercise devoid
of common sense.” United States v. Gonzales, 250 F.3d 923, 930
(5th Cir. 2001). Licon-Nunez has not shown that his sentence of
fifty-seven months is unreasonable, and the district court did
not err in imposing it.
C.
In his third point of error, Licon-Nunez argues that his
fifty-seven-month term of imprisonment exceeds the statutory
maximum sentence of two years permitted for a conviction under 8
U.S.C. 1326(a). He challenges the constitutionality 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions as sentencing factors rather than as elements of the
offense that must be found by a jury in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). He recognizes that his argument is
foreclosed by Alemendarez-Torres v. United States, 523 U.S. 224(1998), but raises it to preserve it for further review.
III.
For the foregoing reasons, we AFFIRM Licon-Nunez’s
conviction and sentence.
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