United States v. Martinez-Sanchez , 278 F. App'x 676 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 22, 2008
Decided May 21, 2008
Before
KENNETH F. RIPPLE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-2399
UNITED STATES OF AMERICA Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
ADRIAN MARTINEZ-SANCHEZ No. 06 CR 790
Defendant-Appellant.
Charles P. Kocoras,
Judge.
ORDER
Adrian Martinez-Sanchez pleaded guilty to being in the United States without permission
after his removal. See 8 U.S.C. § 1326(a). The probation officer recommended a guidelines
imprisonment range of 77 to 96 months based largely on a 16-level increase that applies when an
alien’s removal followed a conviction for a crime of violence. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The district court, based on that recommendation, sentenced Martinez-
Sanchez to 84 months imprisonment. Martinez-Sanchez now challenges the 16-level increase.
Because his 2002 aggravated battery conviction qualifies as a crime of violence, we affirm.
Martinez-Sanchez, a Mexican citizen with an astonishing 8 aliases and 32 known
convictions, was formally removed from the United States in 2003. He returned, unlawfully,
No. 07-2399 Page 2
three years later. Following an arrest in Berwyn, Illinois, in October 2006, Martinez-Sanchez
was turned over to immigration agents and charged with violating § 1326(a). He reached a plea
agreement with the government, but in doing so disagreed with the government’s position that,
due to his two prior convictions for aggravated battery, the 16-level upward adjustment was
appropriate.
The probation officer, adopting the government’s position, concluded that Martinez-
Sanchez’s 1995 and 2002 felony convictions for aggravated battery of a police officer, see 720
ILCS 5/12-3, 5/12-4(b)(6) (2003), qualified as crimes of violence, subjecting him to the 16-level
increase. The probation officer noted that Martinez-Sanchez had struck an officer in the nose
with his right knee during the 1995 arrest and had thrown a punch “towards the officer’s facial
area” during the 2002 incident. The probation officer cited the charging document for the 2002
conviction, which states that Martinez-Sanchez “intentionally or knowingly without legal
justification caused bodily harm to [the police officer] in the face with his fist, knowing the
officer to be a peace officer.” With the 16-level increase and a 3-level reduction for acceptance
of responsibility, the probation officer calculated a total offense level of 21. Combined with
Martinez-Sanchez’s criminal history category of VI, the probation officer recommended a
guidelines imprisonment range of 77 to 96 months.
Martinez-Sanchez objected to the 16-level increase because, he claimed, Illinois law
does not make physical force an element of aggravated battery of a police officer. Moreover, he
argued, the probation officer was not authorized to consider the “specific conduct” underlying
either conviction. At sentencing Martinez-Sanchez reiterated these objections, but the district
court adopted the probation officer’s calculations. The court stated that it could “not go behind
the elements of the offense,” but nonetheless concluded, based on its reading of a decision from
this court, “aggravated battery is a crime of violence.” The court then rejected Martinez-
Sanchez’s arguments for a below-guidelines sentence and imposed the 84-month term.
On appeal, Martinez-Sanchez argues that under Illinois law, aggravated battery can
encompass nonviolent conduct and thus the court was required to look beyond the statutory
elements to determine the true nature of his convictions. But, Martinez-Sanchez contends, the
court lacked access to any of the permitted source materials that may be used in making this
inquiry and, instead, erred by gleaning the underlying facts from a police officer’s affidavit.
The classification of a prior conviction under the sentencing guidelines is a legal
question reviewed de novo. United States v. Franco-Hernandez, 511 F.3d 768, 769 (7th Cir.
2008). Under the guidelines a defendant in a § 1326(a) case is subject to a 16-level increase
in base offense level if he has a prior felony conviction for a “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). “‘Crime of violence’ means any of the following: murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or 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.” Id. § 2L1.2 cmt. n.1(B)(iii). Battery is not an
No. 07-2399 Page 3
enumerated offense, so whether the disputed convictions meet the guidelines definition turns on
the statutory elements.
In evaluating this question, two preliminary points are in order. First, for purposes of
§ 2L1.2(b)(1)(A)(ii), “force” means force that is “violent in nature.” See Flores v. Ashcroft, 350
F.3d 666, 672 (7th Cir. 2003); United States v. Franco-Fernandez, 511 F.3d 768, 770-71 (7th
Cir. 2008). Second, the district court was mistaken in believing that United States v. Thigpen,
456 F.3d 766, 770 (7th Cir. 2006), forecloses the argument made by Martinez-Sanchez. It is
true that in Thigpen we did say that, for purposes of the career offender guideline, see U.S.S.G.
§ 4B1.1, aggravated battery under the Illinois statute “involves the use or threatened use of force
against another person” and thus “meets the requirements for a crime of violence,” Thigpen, 456
F.3d at 770. But this conclusion is dicta (the defendant was a career offender by virtue of other
convictions for robbery and possession of a controlled substance with intent to deliver), and in a
later case we implied that Thigpen was not the last word. See United States v. Humphreys, 468
F.3d 1051, 1055 (7th Cir. 2006) (explaining that previous decisions, including Thigpen, created
“some doubt” about whether “aggravated battery under the Illinois statute may in some cases be
nonviolent”). And just two months ago we made explicit that the Illinois statute permits
conviction for aggravated battery of a police officer even where the defendant did not engage in
force that is “violent in nature.” See Garcia-Meza v. Mukasey, 516 F.3d 535, 537 (7th Cir. 2008)
(noting that spitting in direction of police officer can be aggravated battery under Illinois
statute).
The Illinois statute provides that a person “commits battery if he intentionally or
knowingly without legal justification and by any means, (1) causes bodily harm to an individual
or (2) makes physical contact of an insulting or provoking nature with an individual.” 720 ILCS
5/12-3. Thus, one way of committing battery is to make “physical contact” without causing
injury, and that physical contact does not have to be violent in nature. See, e.g., Illinois v. Peck,
633 N.E.2d 222, 223 (Ill. App. Ct. 1994) (explaining that 720 ILCS 5/12-3 defines battery as
making offensive contact with a victim “by any means,” which encompasses spitting at a peace
officer). Moreover, a simple battery involving nonviolent physical contact can become
“aggravated” by the addition of facts that have nothing to do with physical force. A battery can
be aggravated because it causes “great bodily harm,” 720 ILCS 5/12-4(a), or because, as here,
the victim is a “peace officer,” 720 ILCS 5/12-4(b)(6) (2003); see Illinois v. Hale, 395 N.E.2d
929, 931-32 (Ill. 1979) (holding that aggravated battery of peace officer encompasses both
insulting or provoking contact and battery resulting in bodily harm); Illinois v. McBrien, 494
N.E.2d 732, 737 (Ill. App. Ct. 1986) (noting that battery of police officer elevates simple battery
to aggravated battery and can take either form).
Because Illinois law criminalizes both violent and nonviolent aggravated battery, the
district judge could properly look beyond the statutory language to the underlying conduct to
ascertain whether Martinez-Sanchez’s convictions qualified as crimes of violence for purposes
of § 2L1.2(b)(1)(A)(ii). See, e.g., United States v. Gilbert, 464 F.3d 674, 678 (7th Cir. 2006);
United States v. Sperberg, 432 F.3d 706, 708 (7th Cir. 2005). The scope of the inquiry, though,
is limited. A sentencing court may look only to (1) admissions made by the defendant and (2)
No. 07-2399 Page 4
the charging document, plea agreement, plea colloquy, and comparable judicial records from the
conviction(s). Shepard v. United States, 544 U.S. 13, 16 (2005); United States v. Lewis, 405
F.3d 511, 514-15 (7th Cir. 2005). A sentencing court may not look to police reports, Shepard,
544 U.S. at 16, or arrest affidavits, Lewis, 405 F.3d at 515, in evaluating the defendant’s
underlying conduct.
Here, in compiling the presentence report the probation officer ran afoul of Shepard
and Lewis by considering the police reports and arrest affidavits for Martinez-Sanchez’s 1995
and 2002 convictions for aggravated battery. At the same time, however, the probation officer
also reviewed the charging document for the 2002 conviction. Resort to that document was
permissible, and it spells out that Martinez-Sanchez was charged with “causing bodily harm to
officer Donald Garrity in the face with his fist.” Thus, because proper evidence of Martinez-
Sanchez’s underlying conduct for his 2002 aggravated battery conviction exists in the record, the
district court did not err in applying the 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Accordingly, we AFFIRM Martinez-Sanchez’s sentence.