United States v. Gracia-Cantu

REVISED AUGUST 27, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-41029
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE PRISCILIANO GRACIA-CANTU
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
August 9, 2002
Before KING, Chief Judge, and PARKER, Circuit Judge, and ELLISON,
District Judge.*
KING, Chief Judge:
Defendant–Appellant Jose Prisciliano Gracia-Cantu appeals
his sentence imposed by the district court for a violation of 8
U.S.C. § 1326(a) & (b) (2000). For the following reasons, we
VACATE Gracia-Cantu’s sentence and REMAND for resentencing in
accordance with this opinion.
*
District Judge of the Southern District of Texas,
sitting by designation.
I. FACTUAL AND PROCEDURAL HISTORY
On April 14, 2001, the United States Border Patrol
discovered Defendant–Appellant Jose Prisciliano Gracia-Cantu at
the Falfurrias Border Patrol Checkpoint near Falfurrias, Texas.
Gracia-Cantu was charged with the offense of illegal re-entry
after deportation in violation of 8 U.S.C. § 1326(a) & (b).1 On
June 11, 2001, Gracia-Cantu pled guilty to the illegal re-entry
charge.
1
Gracia-Cantu was deported on October 9, 1998 and on
April 4, 2001. He did not have permission from the Attorney
General to re-enter the United States. Section 1326 reads in
relevant part:
(a) Subject to subsection (b) of this
section, any alien who –
(1) has been denied admission, excluded,
deported, or removed or has departed the
United States while an order of
exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at
any time found in, the United States,
unless . . . the Attorney General has
expressly consented to such alien’s
reapplying for admission . . .
shall be fined under Title 18, or imprisoned
not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this
section, in the case of any alien described
in such subsection –
. . .
(2) whose removal was subsequent to a
conviction for commission of an
aggravated felony, such alien shall be
fined under such Title, imprisoned not
more than 20 years, or both.
. . .
8 U.S.C. § 1326.
2
The sentencing guideline applicable to a violation of § 1326
calls for a base offense level of eight. U.S. SENTENCING GUIDELINES
MANUAL § 2L1.2(a) (2000).2 This base offense level is increased
by sixteen levels if the defendant has a prior conviction for an
aggravated felony. Id. § 2L1.2(b)(1)(A) (2000). The presentence
report (the “PSR”) prepared by the United States Probation Office
recommended a base offense level of eight, an increase of sixteen
levels because of a prior Texas felony conviction for injury to a
child, and a decrease of three levels because of Gracia-Cantu’s
acceptance of responsibility, for a total offense level of
twenty-one.
The district court adopted most of the findings of the PSR,
including the characterization of Gracia-Cantu’s state felony
conviction for injury to a child as an aggravated felony,
resulting in an offense level of twenty-one.3 The district court
sentenced Gracia-Cantu to seventy months of imprisonment, two
years of supervised release, and a mandatory special assessment
of $100. This term of imprisonment is within the range
2
Because Gracia-Cantu was sentenced on August 15, 2001,
before the effective date of the 2001 version of the Sentencing
Guidelines, the 2000 version applies. See United States v. Hill,
258 F.3d 355, 356 n.1 (5th Cir. 2001).
3
After an objection by Gracia-Cantu, the district court
declined to adopt the PSR’s recommended criminal history category
of VI. The district court determined that a criminal history
category of V, rather than the recommended category of VI, was
appropriate. Gracia-Cantu’s criminal history category is not an
issue in this appeal.
3
applicable to an offense level of twenty-one and a criminal
history category of V. U.S. SENTENCING GUIDELINES MANUAL ch.5, pt. A
(sentencing table) (2000).
II. DISCUSSION
Gracia-Cantu appeals his sentence on the ground that the
district court improperly classified his felony conviction for
injury to a child as an aggravated felony and thus improperly
enhanced his sentence. Because Gracia-Cantu raises this argument
for the first time on appeal, we review the district court’s
sentence enhancement for plain error. United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc). We find
plain error only if: (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
(1993). When these elements are present, we may exercise our
discretion to correct the error only if it “seriously affect[s]
the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal citations and quotations omitted)
(alteration in original).
Under the sentencing guidelines applicable to a conviction
for illegal re-entry pursuant to § 1326, a sixteen-level increase
in offense level applies if the defendant’s prior deportation
followed a conviction for an “aggravated felony.” U.S. SENTENCING
GUIDELINES MANUAL § 2L1.2(b)(1)(A). The commentary on § 2L1.2 of
4
the sentencing guidelines adopts the definition of “aggravated
felony” in 8 U.S.C. § 1101(a)(43) (2000). Under that definition,
“aggravated felony” includes “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.” Id. § 1101(a)(43)(F). Section 16 of Title 18 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, or
(b) any other offense that is a felony and
that, by its nature, involves a substantial
risk that physical force against the person
or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16 (2000).4 The central issue in this appeal is
whether Gracia-Cantu’s state felony conviction for injury to a
child is an “aggravated felony” under this definition.
The Texas statute under which Gracia-Cantu was convicted for
injury to a child provides in relevant part:
(a) A person commits an offense if he
intentionally, knowingly, recklessly, or with
criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, causes
4
Compare United States v. Charles, No. 01-10113, 2002 WL
1764147, at *2 (5th Cir. July 31, 2002) (holding that “sentences
involving possession of a firearm by a felon, which also involve
a prior conviction for an alleged ‘crime of violence,’ are to
have the ‘crime of violence’ determination made only in
accordance with the definition in § 4B1.2(a) [of the Sentencing
Guidelines]” rather than in accordance with 18 U.S.C. § 16)
(internal citation omitted).
5
to a child, elderly individual, or disabled
individual:
(1) serious bodily injury;
(2) serious mental deficiency,
impairment, or injury; or
(3) bodily injury.
TEX. PENAL CODE ANN. § 22.04(a) (Vernon 2002).5 Gracia-Cantu was
originally sentenced to five years of deferred adjudication
probation for his offense of injury to a child. However, Gracia-
Cantu’s probation was revoked on November 4, 1996, and he was
sentenced to serve five years of imprisonment. Consequently,
Gracia-Cantu’s prior conviction satisfies the part of the
definition of an aggravated felony requiring that the sentence
imposed for the conviction be a “term of imprisonment [of] at
least one year.” See 8 U.S.C. § 1101(a)(43)(F). Therefore, if
Gracia-Cantu’s prior offense for injury to a child constitutes a
“crime of violence” under 18 U.S.C. § 16(a) or (b), then the
offense is an aggravated felony supporting a sixteen-level
enhancement of Gracia-Cantu’s offense level.
5
In its brief, the government argues that, because the
PSR does not identify the specific Texas statutory section
pursuant to which Gracia-Cantu was convicted for injury to a
child, “this court cannot conclude that it was error for the
district court to order the enhancement or that the error was
obvious.” This argument is unpersuasive. The PSR states, in
paragraph twenty-three, that Gracia-Cantu “was convicted of
injury to a child.” Section 22.04 is the only Texas statute that
defines the offense of injury to a child.
6
A. 18 U.S.C. § 16(a)
Gracia-Cantu persuasively argues that his prior offense does
not constitute a crime of violence under 18 U.S.C. § 16(a)
because section 22.04(a) of the Texas Penal Code, the statute
criminalizing injury to a child, does not require that the
perpetrator actually use, attempt to use, or threaten to use
physical force against a child. Rather, section 22.04(a) is
results-oriented in that the culpable mental state must relate to
the result of a defendant’s conduct rather than to the conduct
itself. See Patterson v. State, 46 S.W.3d 294, 301 (Tex.
App.–Fort Worth 2001, no pet.). The government concedes that,
because the statutory definition of the offense does not
explicitly require the application of force as an element, 18
U.S.C. § 16(a) does not apply to Gracia-Cantu’s offense of injury
to a child. Accordingly, we need not consider the issue further.
B. 18 U.S.C. § 16(b)
Gracia-Cantu further argues that his offense for injury to a
child is not a crime of violence under 18 U.S.C. § 16(b) because
there is not a substantial risk that physical force will be used
to effectuate the offense. In support of his argument, Gracia-
Cantu cites numerous cases involving offenses under section 22.04
that were committed through omissions rather than conscious acts.
Gracia-Cantu argues that because an offense of injury to a child
often stems from an omission rather than an intentional use of
7
force, such offense is not, by its nature, a crime of violence
within the meaning of 18 U.S.C. § 16(b). We agree.
In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.
2001), this court held that the Texas felony offense of driving
while intoxicated does not constitute a crime of violence under
18 U.S.C. § 16(b). Id. at 927. In reaching this conclusion, the
Chapa-Garza court emphasized that:
[T]he words “by its nature” [in 18 U.S.C.
§ 16(b)] require us to employ a categorical
approach when determining whether an offense
is a crime of violence. This means that the
particular facts of the defendant’s prior
conviction do not matter, e.g.[,] whether the
defendant actually did use force against the
person or property of another to commit the
offense. The proper inquiry is whether a
particular defined offense, in the abstract,
is a crime of violence under 18 U.S.C.
§ 16(b).
Id. at 924 (internal citation omitted). Other decisions by this
court likewise stress this categorical approach. See, e.g.,
United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.
2001) (noting that “the statutory phrase ‘by its nature’ compels
us to look only at the inherent nature of the offense to
determine whether the offense constitutes a crime of violence”)
(internal citation and quotation omitted); United States v.
Velazquez-Overa, 100 F.3d 418, 420-21 (5th Cir. 1996) (“[E]ither
a crime is violent ‘by its nature’ or it is not. It cannot be a
crime of violence ‘by its nature’ in some cases, but not others,
depending on the circumstances.”). We further clarified in
8
Chapa-Garza that a crime of violence as defined by 18 U.S.C.
§ 16(b) must involve “the substantial likelihood that the
offender will intentionally employ force against the person or
property of another in order to effectuate the commission of the
offense.” 243 F.3d at 927.
Utilizing the categorical approach endorsed by this court in
Chapa-Garza and other cases, we focus only on the offense of
injury to a child as defined under Texas law and not on the
particular facts of Gracia-Cantu’s conviction. Section 22.04(a)
criminalizes acts or omissions that intentionally, knowingly,
recklessly, or negligently result in injury to a child. See TEX.
PENAL CODE ANN. § 22.04(a). Thus, as noted above, the culpable
mental state relates to the result of a defendant’s conduct
rather than to the conduct itself. See Patterson, 46 S.W.3d at
301.
Because the offense of injury to a child is results-
oriented, many convictions for this offense involve an omission
rather than an intentional use of force. See Chapa-Garza, 243
F.3d at 926 (noting that “a parent who leaves a young child
unattended near a pool may risk serious injury to the child, but
the action does not involve an intent to use force or otherwise
harm the child”) (internal citation and quotation omitted); see
also Patterson, 46 S.W.3d at 294 (involving a mother’s conviction
under section 22.04(a) for reckless injury to a child for failing
to aid her children during their kidnapping); Dusek v. State, 978
9
S.W.2d 129 (Tex. App.–Austin 1998, pet. ref’d) (involving a
mother’s conviction for intentional or knowing serious bodily
injury to a child for failing to remove her son from the presence
of her abusive boyfriend and for the failure to provide medical
care); Babers v. State, 834 S.W.2d 467 (Tex. App.–Houston [14th
Dist.] 1992, no pet.) (involving a conviction for intentional or
knowing injury to a child for failing to provide proper medical
care for a burned child). As these examples illustrate, in many
cases the offense of injury to a child does not involve the
substantial likelihood of an intentional use of force. Thus, the
offense is not, “by its nature,” a crime of violence under 18
U.S.C. § 16(b). See Velazquez-Overa, 100 F.3d at 420-21.
Accordingly, the district court’s sixteen-level enhancement of
Gracia-Cantu’s offense level constitutes clear and obvious error.
Absent a prior conviction for an aggravated felony, Gracia-
Cantu’s total offense level would have been ten (a base offense
level of eight, a four-level increase for a prior “nonaggravated”
felony conviction, and a two-level reduction for acceptance of
responsibility). U.S. SENTENCING GUIDELINES MANUAL §§ 2L1.2(a),
(b)(1)(B) & 3E1.1(a) (2000).6 An offense level of ten
6
A defendant with a total offense level of ten is
entitled to a two-level reduction for accepting responsibility.
U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a). A defendant with a
total offense level greater than sixteen, however, may qualify
for a three-level reduction for accepting responsibility. Id. at
§ 3E1.1(b).
10
corresponds to an imprisonment range of twenty-one to twenty-
seven months. Id. ch.5, pt. A (sentencing table). In contrast,
the offense level of twenty-one assigned to Gracia-Cantu
corresponds to an imprisonment range of seventy to eighty-seven
months, id., and the district court sentenced Gracia-Cantu to
seventy months of imprisonment. The dramatic increase in the
recommended imprisonment range and in Gracia-Cantu’s actual term
of imprisonment affected his substantial rights. See United
States v. Williamson, 183 F.3d 458, 464 (5th Cir. 1999)
(concluding that a two-fold increase in prison time affected the
defendant’s substantial rights). Such a sentencing error also
seriously affects the fairness, integrity, or public reputation
of the judicial proceedings. See United States v. Aderholt, 87
F.3d 740, 744 (5th Cir. 1996) (finding that “the fairness and
integrity of this judicial proceeding were seriously affected” by
sentencing calculation errors). Thus, the district court’s
sixteen-level enhancement of Gracia-Cantu’s offense level
constituted plain error.
III. CONCLUSION
For the foregoing reasons, we conclude that the district
court’s sixteen-level enhancement of Gracia-Cantu’s offense level
constituted plain error. Accordingly, we VACATE Gracia-Cantu’s
sentence and REMAND for resentencing in accordance with this
opinion.
11