United States v. Genaro Vincencio-Martinez

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-2496
_____________
UNITED STATES OF AMERICA
v.
GENARO VINCENCIO-MARTINEZ,
Appellant
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 1:10-cr-00016-SJM-1)
District Judge: Honorable Sean J. McLaughlin
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 17, 2010
Before: JORDAN, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
(Filed: December 20, 2010)
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OPINION OF THE COURT
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VAN ANTWERPEN, Circuit Judge.
Genaro Vincencio-Martinez (“Vincencio-Martinez”) pleaded guilty in the United
States District Court for the Western District of Pennsylvania to violating 8 U.S.C. §
1326, illegal reentry after removal. The District Court enhanced Vincencio-Martinez’s
sentence by eight levels pursuant to U.S.S.G. § 2L1.2 because it found that Vincencio-
Martinez’s prior guilty plea to “assault and battery” in violation of Virginia Code § 18.2-
57 constituted a crime of violence as defined in 18 U.S.C. § 16(a). Vincencio-Martinez
challenges the applicability of the enhancement. We will affirm.
I.
Defendant-Appellant Vincencio-Martinez was charged in a one-count indictment
with illegally reentering the United States after removal in violation of 8 U.S.C. § 1326.
On April 22, 2010, Vincencio-Martinez pleaded guilty.
At the May 24, 2010 sentencing hearing, the government sought an enhancement
under U.S.S.G. § 2L1.2(b)(1)(C)1 on the basis that Vincencio-Martinez had previously
committed an “aggravated felony.” The prior conviction, which the government alleged
constituted an aggravated felony, occurred on May 23, 2004, when Vincencio-Martinez
was charged in the Shenandoah General District Court with the offense of “Aggravated
Malicious Wounding” in violation of Virginia Code § 18.2-51.2.2 When Vincencio-
1
United States Sentencing Guideline § 2L1.2 is entitled “Unlawfully Entering or
Remaining in the United States.” Subsection (b)(1)(C) provides, in relevant part:
...
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the
United States, after –
...
(C) a conviction for an aggravated felony, increase by 8 levels;
2
VA. CODE ANN. § 18.2-51.2 (2010) provides, in relevant part:
Aggravated malicious wounding; penalty
A. If any person maliciously shoots, stabs, cuts or wounds any other person,
or by any means causes bodily injury, with the intent to maim, disfigure,
disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby
2
Martinez appeared in court on July 27, 2004, the Commonwealth of Virginia reduced the
charge to “Assault and Battery” in violation of Virginia Code § 18.2-57. Vincencio-
Martinez pleaded guilty to this misdemeanor offense.3
At the sentencing hearing on the illegal reentry charge, the parties disagreed as to
whether Vincencio-Martinez’s previous misdemeanor conviction under Virginia Code §
18.2-57 for “assault and battery” was an “aggravated felony” as that term is used in §
2L1.2 of the Sentencing Guidelines. The Sentencing Guidelines refer to the term
“aggravated felony” as defined by the Immigration and Nationality Act § 101(a)(43),
codified at 8 U.S.C. § 1101(a)(43). U.S. Sentencing Guidelines Manual § 2L1.2,
Application Note 3. Referring to 8 U.S.C. § 1101(a)(43) subsection (F), that statute
defines an “aggravated felony” as “a crime of violence (as defined in section 16 of Title
18, but not including a purely political offense) for which the term of imprisonment [is] at
least one year.” 8 U.S.C. § 1101(a)(43)(F) (2010). In turn, 18 U.S.C. § 16 defines the
term “crime of violence” as “an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another . . . .”4 18
U.S.C. § 16(a) (2010).
severely injured and is caused to suffer permanent and significant physical
impairment.
3
General District Courts in Virginia are courts “not of record” and, in criminal cases,
can accept guilty pleas only to misdemeanors. See VA. CODE ANN. § 16.1-123.1
(2010).
4
The parties agree that 18 U.S.C. § 16(b) is not applicable because it refers to felony
offenses, and it is undisputed that Vincencio-Martinez pleaded guilty to a
misdemeanor.
3
The District Court found that an “assault and battery” conviction under Virginia
Code § 18.2-57(A) was a “crime of violence” under 18 U.S.C. § 16(a) and hence an
“aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G. §
2L1.2(b)(1)(C). Therefore, the District Court enhanced Vincencio-Martinez’s sentence
by eight levels. Without the enhancement, Vincencio-Martinez’s Sentencing Guidelines
Range would have been one month to seven months. With the 8-level enhancement,
Vincencio-Martinez’s offense level jumped to 15 and, with a Criminal History Category
of Two, the resulting range was 15 to 21 months. The District Court sentenced
Vincencio-Martinez to 15 months of imprisonment and two years of supervised release.
On May 25, 2010, Vincencio-Martinez timely filed this appeal challenging his
sentence.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and
(b). “We exercise plenary review over the legal question whether a particular crime
constitutes a crime of violence.” United States v. Johnson, 587 F.3d 203, 207 (3d Cir.
2009); United States v. Stinson, 592 F.3d 460, 462 n.1 (3d Cir. 2010).
III.
A. Statutory Framework
U.S.S.G. § 2L1.2(b)(1)(C) recommends an eight-level enhancement if the
defendant was previously convicted of committing an “aggravated felony.” According to
application note 3(A) to U.S.S.G. § 2L1.2, an “aggravated felony” has the meaning given
4
to that term in the Immigration and Nationality Act § 101(a)(43). The only potentially
applicable subsection of INA § 101(a)(43) is subsection (F), which defines an
“aggravated felony” as “a crime of violence (as defined in section 16 of title 18, United
States Code, but not including a purely political offense) for which the term of
imprisonment [is] at least one year.” Finally, 18 U.S.C. § 16 defines a “crime of
violence” as “(a) an offense that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another . . . .” 18 U.S.C. § 16(a).
The issue here is whether a misdemeanor “assault and battery” conviction under
Virginia Code § 18.2-57(A) is a “crime of violence” under 18 U.S.C. § 16(a), meaning
that it is “an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” We can find no relevant federal
statute that defines “physical force” as that term is used in 18 U.S.C. § 16(a). Vincencio-
Martinez pleaded guilty to Virginia Code § 18.2-57(A), which provides:
A. Any person who commits a simple assault or assault and battery shall be
guilty of a Class 1 misdemeanor, and if the person intentionally selects the
person against whom a simple assault is committed because of his race,
religious conviction, color or national origin, the penalty upon conviction
shall include a term of confinement of at least six months, 30 days of which
shall be a mandatory minimum term of confinement.
VA. CODE. ANN. § 18.2-57(A) (2010).
The meaning of “physical force” in 18 U.S.C. § 16(a) is a question of federal
rather than state law, and “in answering that question [of federal law] we are not bound
by a state court’s interpretation of a similar – or even identical – statute.” Johnson v.
United States, 130 S. Ct. 1265, 1269-70 (2010). However, we are bound by the Virginia
5
judiciary’s interpretation of Virginia state law, including its determination of the elements
of Virginia Code § 18.2-57(A). Id.
To determine whether a conviction under Virginia Code § 18.2-57(A) is a “crime
of violence,” we presumptively use a categorical approach. See Taylor v. United States,
495 U.S. 575, 600-02 (1990). Under the categorical approach, we must first discern the
elements of Virginia Code § 18.2-57(A) and then determine if the Virginia crime is a
“crime of violence” as defined in 18 U.S.C. 16(a). See James v. United States, 550 U.S.
192, 202 (2007).5
B. Elements of Virginia Code § 18.2-57(A)
We begin by defining the elements of Virginia Code § 18.2-57(A), which
criminalizes the offense of “assault and battery.”6 The elements of this crime are not
statutorily defined, so we look to Virginia common law. See Clark v. Commonwealth,
279 Va. 636, 641, 691 S.E.2d 786, 788 (Va. 2010). According to the Virginia Supreme
Court, a common law “assault” is an “attempt with force and violence, to do some bodily
hurt to another, whether from wantonness or malice, by means calculated to produce the
end if carried into execution; it is any act accompanied with circumstances denoting an
5
As we will explain, we need not resort to the “modified categorical approach.” See
Evanson v. Att’y Gen., 550 F.3d 284, 291 (3d Cir. 2008) (applying modified
categorical approach to “disjunctive statute of conviction”). Here, the elements of
conviction for “assault and battery” under Virginia Code § 18.2-57(A) are clear, and
the statute does not appear to be divisible in any “relevant way.” Singh v. Ashcroft,
383 F.3d 144, 163 (2004).
6
Virginia Code § 18.2-57(A) also criminalizes the offense of “simple assault,” but the
parties agree that Vincencio-Martinez pleaded guilty to “assault and battery.”
6
intention, coupled with a present ability, to use actual violence against another person.”
Montague v. Commonwealth, 278 Va. 532, 541, 684 S.E.2d 583, 588 (Va. 2009). A
“battery” is “the actual infliction of corporal hurt on another that is done willfully or in
anger.” Id. at 541, 684 S.E.2d at 588. Although “assault” and “battery” carry separate
definitions, the plain conjunctive text of Virginia Code § 18.2-57(A) links these two
crimes. Id. at 541, 684 S.E.2d at 588-89; Parish v. Commonwealth, 56 Va. App. 324,
329, 693 S.E.2d 315, 318 (Va. Ct. App. 2010) (“The crime of assault and the crime of
battery are independent criminal acts, although they are linked in Code § 18.2-57.”).
Indeed, the Virginia Supreme Court’s recent treatment of the statute construed these
elements as linked. Montague, 278 Va. at 541, 684 S.E.2d at 589 (“[T]he evidence was
sufficient to convict [the defendant] . . . of the crime of assault and battery . . . .”).
Therefore, a conviction for “assault and battery” under Virginia Code § 18.2-57(A)
necessarily requires satisfaction of the elements of both assault and battery. See id. at
541, 684 S.E.2d at 589.
Vincencio-Martinez disagrees with this reading of Virginia Code § 18.2-57(A),
relying instead on case law defining assault separately from battery. According to
Vincencio-Martinez, an assault or a violent battery or a non-violent battery (i.e., an
unwanted touching) would suffice to obtain a conviction under Virginia Code § 18.2-
57(A). We reject Vincencio-Martinez’s argument because it contradicts the plain text of
7
Virginia Code § 18.2-57(A) and because the cases he cites are no longer controlling in
light of the Virginia Supreme Court’s recent decision in Montague.7
Montague refutes Vincencio-Martinez’s argument that a battery alone could
violate Virginia Code § 18.2-57(A). In Montague, the defendant pushed and elbowed a
7
Vincencio-Martinez first relies on Clark v. Commonwealth, 279 Va. 636, 691
S.E.2d 786 (Va. 2010), and Carter v. Commonwealth, 269 Va. 44, 606 S.E.2d 839(Va. 2005), for the proposition that assault alone violates Virginia Code § 18.2-57(A).
However, Clark and Carter are distinguishable because they deal only with the
assault portion of the code, and not with the “assault and battery” portion. In Clark,
the defendant committed assault by verbally threatening and approaching a school bus
driver. 279 Va. at 639, 691 S.E.2d at 787-88. In Carter, the defendant committed
assault by making his hand into the shape of a gun, pointing his index finger at a
police officer, and saying, “Pow.” 269 Va. at 45-46, 606 S.E.2d at 840. Neither case
involved a “battery” – the “actual infliction of corporal hurt on another.” Montague,
278 Va. at 541, 684 S.E.2d at 588. Moreover, Virginia Code § 18.2-57(A)
criminalizes “simple assault” as well as “assault and battery.” Therefore, it is no
surprise that an assault alone violates this provision.
Vincencio-Martinez also relies on two outdated Virginia Court of Appeals cases,
Perkins v. Commonwealth, 31 Va. App. 326, 523 S.E.2d 512 (Va. Ct. App. 2000), and
Gnadt v. Commonwealth, 27 Va. App. 148, 497 S.E.2d 571 (Va. Ct. App. 1946), for
the proposition that a battery alone violates Virginia Code § 18.2-57(A). Perkins
defined “assault and battery” as the “unlawful touching of another.” 31 Va. App. at
330, 523 S.E.2d at 513; Gnadt, 27 Va. App. at 151, 497 S.E.2d at 888 (same).
However, the Perkins and Gnadt definition of “assault and battery” conflicts with the
Virginia Supreme Court’s very recent statement of the elements of this offense in
Montague because they ignore the “intent to harm” element. Montague, 278 Va. at
541, 684 S.E.2d at 588. We will rely on the Virginia Supreme Court’s recent
statement of Virginia state law.
Finally, Vincencio-Martinez relies on United States v. White, 606 F.3d 144, 148-
49 (4th Cir. 2010), a Fourth Circuit case which holds that even a battery committed by
the “least touching of another,” Perkins, 31 Va. App. at 330, 523 S.E.2d at 513, could
lead to a conviction under Virginia Code § 18.2-57. White does not account for the
Virginia Supreme Court’s pronouncement in Montague that an “assault and battery”
includes an “intent to harm.” Montague, 278 Va. at 541, 684 S.E.2d at 588. Because
“assault and battery” requires an intent to harm, White’s determination that a mere
“offensive touching” is enough to commit an “assault and battery” is not persuasive.
See White, 606 F.3d at 155. In light of our reading of Montague, we decline to follow
White’s interpretation of Virginia law.
8
police officer, but argued that the evidence was insufficient to support his conviction for
“assault and battery” because it “failed to establish that [the defendant] intended to inflict
physical harm on [the police officer].” 278 Va. at 540-41, 684 S.E.2d at 588. The
Virginia Supreme Court upheld the conviction because it determined that the defendant
“acted with the intent to inflict physical harm.” Id. at 541, 684 S.E.2d at 589. The
required “intent to harm” is an element of assault. Id. at 541, 684 S.E.2d at 589; see
Commonwealth v. Vaughn, 263 Va. 31, 35, 557 S.E.2d 220, 222 (Va. 2002) (“[T]he
intent to put another in fear of bodily harm . . . is an assault.”). If Virginia Code § 18.2-
57 could be violated by a battery alone, as Vincencio-Martinez contends, there would
have been no need for the Court to inquire as to whether the defendant had the requisite
“intent to harm” because pushing and elbowing the officer – a “battery” alone – would
have been sufficient to sustain the conviction. See Montague, 278 Va. at 540-41, 683
S.E.2d at 589; Adams v. Commonwealth, 33 Va. App. 463, 468, 534 S.E.2d 347, 350 (Va.
2000) (“One cannot be convicted of assault and battery without an intention to do bodily
harm.”). Montague suggests that both assault and battery are required to violate the
“assault and battery” provision of Virginia Code § 18.2-57(A). Moreover, this reading of
Montague comports with the plain text of Virginia Code § 18.2-57(A), which
criminalizes “assault and battery.” Therefore, we reject Vincencio-Martinez’s contention
that a battery alone violates Virginia Code § 18.2-57(A).
C. Application of Formal Categorical Approach
Having determined the elements of Virginia Code § 18.2-57(A), we follow the
Supreme Court’s instruction and apply the formal categorical approach to classify
9
Vincencio-Martinez’s prior conviction. See Taylor, 495 U.S. at 600-02; Johnson, 587
F.3d at 208. Under the formal categorical approach, we compare the elements of
conviction of Virginia Code § 18.2-57(A) with the definition of “crime of violence” in 18
U.S.C. § 16(a).
A comparison of these statutory elements indicates that a conviction for the crime
of “assault and battery” under Virginia Code § 18.2-57(A) is a “crime of violence” as
defined in § 16(a).8 The definitions of both “assault” and “battery,” which together
constitute the crime contained in Virginia Code § 18.2-57(A), meet the definition of
“crime of violence.” “Assault” requires a finding of “intent to harm,” which
encompasses the “threatened use of physical force against the person or property of
another” as defined in § 16(a). See Singh v. Gonzales, 432 F.3d 533, 540 (3d Cir. 2006)
(holding that a conviction for simple assault under Pennsylvania law is a crime of
violence). Likewise, a conviction for “battery” requires “actual infliction of corporal hurt
on another” – surely a “crime of violence” within § 16(a)’s definition of “an offense that
has as an element the use . . . of physical force against the person or property of another.”
18 U.S.C. § 16(a). Under the formal categorical approach, then, a conviction for “assault
and battery” under Virginia Code § 18.2-57(A) necessarily is a conviction for a “crime of
violence.”
8
The parties agree that Vincencio-Martinez pleaded guilty to the “assault and battery”
provision of Virginia Code § 18.2-57(A). Even if Vincencio-Martinez had pleaded
guilty to the “simple assault” provision of Virginia Code § 18.2-57(A), the
enhancement would still be appropriate because “simple assault” is a “crime of
violence.” See Singh v. Gonzales, 432 F.3d 533, 540 (3d Cir. 2006) (holding that a
conviction for simple assault under Pennsylvania law is a crime of violence).
10
Because Vincencio-Martinez’s “assault and battery” conviction under Virginia
Code § 18.2-57(A) constitutes a “crime of violence,” 18 U.S.C. § 16(a), he has
committed an “aggravated felony” within the meaning of INA § 101(a)(43), 8 U.S.C. §
1101(a)(43), and thus the eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C)
was appropriate.
IV.
We will affirm the District Court’s sentence.
11