United States v. Esqueda-Pina

Case: 08-40418 Document: 00511013486 Page: 1 Date Filed: 01/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2010
No. 08-40418 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE RICARDO ESQUEDA-PINA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:07-cr-01362
Before KING, GARZA, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-appellant Jose Ricardo Esqueda–Pina pleaded guilty to illegal
reentry to the United States, in violation of 8 U.S.C. § 1326, and received a
sentence of 46 months imprisonment and two years of supervised release. He
now timely appeals his sentence. Esqueda–Pina contends that the district court
improperly characterized his prior convictions for attempted rape and gross
sexual imposition as crimes of violence and therefore erred in applying a sixteen-
level enhancement under the 2007 United States Sentencing Guidelines.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 08-40418
Esqueda–Pina also contends that the district court erroneously assessed an
additional criminal history point, which improperly raised his criminal history
category from II to III. For the following reasons, we affirm the sentence.
I. Factual and Procedural Background
Esqueda–Pina was charged in 2007 with illegal reentry to the United
States in violation of 8 U.S.C. § 1326. He pleaded guilty on January 24, 2008,
under a written plea agreement that reserved his right to appeal the sentence.
The presentence report (PSR) recommended a base offense level of eight
under § 2L1.2(a) of the United States Sentencing Guidelines (“U.S.S.G.” or the
“Guidelines”). It also recommended a sixteen-level “crime of violence”
enhancement under § 2L1.2(b)(1)(A)(ii) based on a 1994 incident for which
Esqueda–Pina pled guilty to attempted rape and gross sexual imposition in Ohio
state court in 1997. The PSR also assessed Esqueda–Pina’s criminal history as
category III, premised on four total criminal history points—three under
U.S.S.G. § 4A1.1(a) for the 1997 conviction, and an additional point under
U.S.S.G. § 4A1.1(f) because, according to the PSR, both the attempted rape and
gross sexual imposition convictions qualified as crimes of violence. The resulting
Guidelines range was 46 to 57 months.
Esqueda–Pina filed a written objection to the recommended sixteen-level
enhancement, arguing that the Ohio conviction for attempted rape was not a
crime of violence under § 2L1.2(b)(1)(A)(ii) of the Guidelines. Esqueda–Pina did
not specifically object to the characterization of his conviction for gross sexual
imposition as a crime of violence, although he did argue more generally that the
government did not meet its burden of proving that he had been convicted of a
crime of violence under § 2L1.2(b)(1)(A)(ii). Esqueda–Pina did not object to the
PSR’s assessment of his criminal history category.
At the sentencing hearing, Esqueda–Pina reurged his general objection
that the government had not met its burden of proof in establishing the
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§ 2L1.2(b)(1)(A)(ii) crime of violence enhancement and his specific objection that
the attempted rape conviction did not provide a basis for enhancement. The
district judge responded that “looking at it, taking a common sense approach,
this does satisfy the definition of that enumerated offense. This court does find
it’s a crime of violence.” The court then adopted the PSR’s findings of fact. After
granting a three-level reduction for acceptance of responsibility, the district
court sentenced Esqueda–Pina to 46 months imprisonment (at the bottom of the
Guidelines range) and two years of supervised release. Esqueda–Pina timely
appealed this sentence.
We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(1), (2). In evaluating Esqueda–Pina’s challenges to the
sentence, we review the district court’s factual findings for clear error and its
application and interpretation of the Guidelines de novo, United States v. Gould,
529 F.3d 274, 276 (5th Cir. 2008), unless no timely objection was raised, in which
case plain error review applies, United States v. Gonzalez–Ramirez, 477 F.3d
310, 311 (5th Cir. 2007).
II. The Crime of Violence Enhancement
Esqueda–Pina contends that neither his attempted rape nor his gross
sexual imposition conviction qualifies as a crime of violence for purposes of
enhancement under § 2L1.2(b)(1)(A)(ii). This section imposes a sixteen-level
enhancement if a defendant was previously deported for a crime of violence,
which the Guidelines Application Notes define as:
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.
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U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). In short, an offense will qualify as a crime of
violence either if it has the requisite “force” element described in the last phrase
of this definition, or if it is one of the offenses specifically enumerated in this
definition. See United States v. Rayo–Valdez, 302 F.3d 314, 316 (5th Cir. 2002).
In determining whether an offense qualifies as a crime of violence under
§ 2L1.2, the court does “not look to [the defendant’s] actual conduct[, but instead]
consider[s] the offense categorically by looking only to the fact of conviction and
the statutory definition of the prior offense.” United States v. Gomez–Gomez, 547
F.3d 242, 244 (5th Cir. 2008) (en banc) (internal quotation marks omitted). If
some part of the statute prohibits conduct that is not a crime of violence, then
a defendant’s conviction under that statute is not a crime of violence unless the
government can establish that the defendant was not convicted under that part.
Id. at 244–45. To determine the part or parts of a statute under which a
defendant was convicted, the district court “can look to those facts contained in
the charging papers and that are necessary to the verdict or the plea.” United
States v. Carbajal–Diaz, 508 F.3d 804, 809 (5th Cir. 2007); see also United States
v. Bonilla–Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (“If a statute contains
multiple, disjunctive subsections, courts may look beyond the statute to certain
conclusive records made or used in adjudicating guilt in order to determine
which particular statutory alternative applies to the defendant’s conviction.”
(internal quotation marks omitted)). The government must “prove by a
preponderance of the relevant and sufficiently reliable evidence” the facts
necessary to establish that the prior conviction was a crime of violence. See
United States v. Andrade–Aguilar, 570 F.3d 213, 217 (5th Cir. 2009).
A. Attempted Rape
Esqueda–Pina contends that his attempted rape conviction does not
provide a basis for enhancement under § 2L1.2(b)(1)(A)(ii). Esqueda–Pina was
indicted for rape but pled guilty to the lesser included offense of attempted rape.
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Count Two of the Ohio indictment contained the rape charge and stated, in
relevant part:
[I]n violation of section 2907.02 of the Ohio Revised Code,
[Esqueda–Pina] did engage in sexual conduct, to wit: vaginal
intercourse, with [the female victim], not his spouse and the said
[victim] being less than thirteen (13) years of age, to wit: twelve
(12) years of age, and/or . . . Esqueda having purposely compelled
[the victim] to submit by force or threat of force.
The parties do not dispute that only two subsections of § 2907.02 correspond to
the conduct described in the indictment. These subsections read:
(A)(1) No person shall engage in sexual conduct with another who
is not the spouse of the offender or who is the spouse of the offender
but is living separate and apart from the offender, when any of the
following applies:
....
(b) The other person is less than thirteen years of age,
whether or not the offender knows the age of the other person.
....
(2) No person shall engage in sexual conduct with another when the
offender purposely compels the other person to submit by force or
threat of force.
O HIO R EV. C ODE A NN. § 2907.02 (1994). The 1997 judgment reflects that
Esqueda–Pina “entered a plea of guilty to the stipulated lesser included offense
of Count Two of the Indictment, to wit: attempted Rape, a violation of Section
2923.02 as it relates to 2907.02 of the Ohio Revised Code.” 1
Esqueda–Pina does not dispute that if he had pled guilty to an attempted
violation of either § 2907.02(A)(1)(b) or § 2907.02(A)(2), the subsections that
correspond to the indictment, the resulting conviction would provide a basis for
1
Section 2923.02 provides in relevant part that “[n]o person, purposely or knowingly,
and when purpose or knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct which, if successful, would constitute or result in the offense.” OHIO REV .
CODE ANN . § 2923.02(A).
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imposing the crime of violence enhancement under § 2L1.2(b)(1)(A)(ii). As to
§ 2907.02(A)(1)(b), this is consistent with our precedents, which hold that sexual
contact with a child fulfills the enumerated offense under § 2L1.2(b)(1)(A)(ii) of
“sexual abuse of a minor.” See, e.g., United States v. Najera–Najera, 519 F.3d
509, 512 (5th Cir. 2008). As to § 2907.02(A)(2), this is consistent with the plain
language of the definition of crime of violence under § 2L1.2(b)(1)(A)(ii), which
states that the enhancement should apply to any crime 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. n.1(B)(iii). Esqueda–Pina argues, however, that
it is not clear from the judgment that he pled guilty to attempt under those
subsections. Esqueda–Pina points out that the judgment reflects only that he
pled guilty to an attempted version of § 2907.02 generally, and argues that the
judgment might therefore reflect that he pled guilty to attempting to violate a
different subsection of that statute—one that does not qualify as a crime of
violence under § 2L1.2.2
In support of this argument, Esqueda–Pina points to United States v.
Turner, 349 F.3d 833 (5th Cir. 2003), in which the defendant was indicted for
“burglary of a habitation”—a crime of violence under our precedents, see United
States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996)—but pled guilty to the lesser
included offense of “burglary of a building.” Turner, 349 F.3d at 835–36. The
judgment did not include facts indicating that the building at which the burglary
occurred was a habitation. Id. at 836. We held that the district court erred in
looking to the indictment and PSR to supply this fact, holding that the
2
Esqueda–Pina contends, for example, that the subsections of § 2907.02(A) applicable
to rape committed by administering a drug or intoxicant or rape committed by engaging in
sexual conduct with a person whose ability to resist or consent is substantially impaired do
not qualify as crimes of violence. OHIO REV . CODE ANN . § 2907.02(A)(1)(a), (b); see also United
States v. Gomez–Gomez, 547 F.3d at 244 (rape committed by duress does not have as an
element the use of physical force).
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appropriate inquiry was limited to the “conduct of which the defendant was
convicted.” Id. (internal quotation marks omitted). Analyzing the general
elements of the lesser-included offense of burglary of a building, we concluded
that the defendant had not committed a crime of violence. Id. Esqueda–Pina
urges that under Turner, this court is limited to analyzing the general elements
of attempted rape in determining whether he committed a crime of violence, and
that not all types of attempted rape would so qualify.
The government has not provided briefing as to whether Turner controls,
and we decline to make that determination here. Assuming without deciding
that Turner does prevent Esqueda–Pina’s attempted rape conviction from
providing a basis for enhancement under § 2L1.2(b)(1)(A)(ii), we conclude that
the crime of violence enhancement was nevertheless appropriate because, as
discussed below, the enhancement was supported by Esqueda–Pina’s gross
sexual imposition conviction.
B. Gross Sexual Imposition
Count Four of Esqueda–Pina’s Ohio state indictment charged gross sexual
imposition and stated, in relevant part:
[I]n violation of section 2907.05 of the Ohio Revised Code[,
Esqueda–Pina] did have sexual contact with [the female victim], . . .
having purposely compelled Esqueda to submit by force or threat of
force, and/ or the said [female victim] being less than thirteen (13)
years of age, to wit: twelve (12) years of age.
The 1997 judgment against Esqueda–Pina, in turn, reflects that he “entered a
plea of guilty to Count Four of the Indictment; to wit: Gross Sexual Imposition,
a violation of Section 2907.05 of the Ohio Revised Code, a Felony of the Third
degree[,] and was found guilty of said charge[ ] by the Court.”
The parties do not dispute that only two subsections of § 2907.05
correspond to the conduct described in the indictment. These subsections read:
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(A) No person shall have sexual contact with another . . . when any
of the following applies:
(1) The offender purposely compels the other person . . . to
submit by force or threat of force[; or]
...
(4) The other person . . . is less than thirteen years of age,
whether or not the offender knows the age of that person.
O HIO R EV. C ODE A NN. § 2907.05(A).3 Of these subsections, only subsection
(A)(4)—sexual contact with a person less than thirteen years of age—is a third
degree felony; all other subsections in § 2907.05(A) are fourth degree felonies.
Id. § 2907.05(B).
The parties also do not dispute that if Esqueda–Pina was convicted under
subsection (A)(4), the crime of violence enhancement properly would apply. This
is consistent with our precedents, which show that sexual indecency or sexual
contact with a minor qualifies as “sexual abuse of a minor,” an enumerated
crime of violence under § 2L1.2. See United States v. Zavala–Sustaita, 214 F.3d
601, 604 (5th Cir. 2000) (upholding sixteen-level enhancement after holding that
conviction for indecent exposure with children under the age of seventeen under
Texas Penal Code § 21.11(b) qualified as “sexual abuse of a minor” under
§ 2L1.2); Najera–Najera, 519 F.3d at 512 (holding that sexual contact with a
child, as defined in Texas Penal Code § 21.11(c), qualified as “sexual abuse of a
minor” under § 2L1.2; reasoning “if . . . indecent exposure absent physical
contact[ ] ipso facto constitutes ‘sexual abuse of a minor,’ common sense dictates
that an adult’s sexual contact with a child . . . also constitutes ‘sexual abuse of
a minor’”); United States v. Izaguirre–Flores, 405 F.3d 270, 271 & n.1 (5th Cir.
3
“Sexual contact,” in turn, is defined as “any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.” Id.§ 2907.01(B).
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2005) (per curiam) (concluding that “sexual abuse of a minor” encompassed a
North Carolina statute that prohibited the “willful[ ] tak[ing] or attempt[ ] to
take any immoral, improper, or indecent liberties with any child . . . under the
age of 16 years for the purpose of arousing or gratifying sexual desire”). There
is no dispute that if Esqueda–Pina was convicted under § 2907.05(A)(4),
applicable to sexual contact with a child under thirteen years of age, the sixteen-
level enhancement would apply.
The parties further agree that if Esqueda–Pina were convicted under
§ 2907.05(A)(1) of “purposely compel[ling]” the twelve-year old girl described in
the indictment “to submit by force or threat of force” to sexual contact, the crime
of violence enhancement would be appropriate. This again is consistent with
§ 2L1.2, which applies the crime of violence enhancement to “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. n.1(B)(iii). Esqueda–Pina points out, however, that the indictment actually
states that he “purposely compelled Esqueda to submit by force or threat of
force.” (emphasis added). He argues that because the indictment, literally read,
indicates that he compelled himself to submit to sexual contact by force or threat
of force, the indictment and guilty plea to the indictment are not reliable
evidence that he “purposely compel[led] the other person, or one of the other
persons, to submit by force or threat of force,” as § 2907.05(A)(1) requires. O HIO
R EV. C ODE A NN. § 2907.05(A)(1) (emphasis added).
The issues, then, are (1) whether it is clear from the Ohio judgment that
Esqueda–Pina was convicted under § 2907.05(A)(4), applicable to sexual contact
with a child age 13 or younger; and (2) if it is not clear, whether Esqueda–Pina’s
guilty plea to “having purposely compelled Esqueda to submit by force” would
establish a violation of § 2907.05(A)(1) and therefore support a crime of violence
enhancement.
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The government urges that Esqueda–Pina must have been convicted
under § 2907.05(A)(4) because the judgment reflects that he was convicted of
“Gross Sexual Imposition, a violation of Section 2907.05 of the Ohio Revised
Code, a Felony of the Third degree,” and subsection (A)(4) is the only third-
degree felony under that statute (the remaining subsections are fourth-degree
felonies). O HIO R EV. C ODE A NN. § 2907.05(B). Esqueda–Pina counters that his
conviction of a third-degree felony does not necessarily indicate that he was
convicted under subsection (A)(4). He argues that the judgment may instead
reflect a conviction under subsection (A)(1) to which some sort of aggravating
enhancement was applied. Esqueda–Pina does not point to any statutory basis
for this contention, and the face of the statute shows no basis for such
enhancement. An Ohio appellate court recently noted the absence of factors that
would aggravate a sentence under the statute, describing § 2907.05(A) as
prohibiting different kinds of conduct, each “a separate offense, having a
separate penalty,” and noting that “there are no additional elements or
attendant circumstances that change the penalty.” State v. Kepiro, No. 06AP-
1302, 2007 WL 2505506, at *8 (Ohio Ct. App. Sept. 6, 2007); see also State v.
Nethers, No. 08CA-78, 2008 WL 2572105, at *7 (Ohio Ct. App. June 4, 2008)
(“[T]here are no additional elements or circumstances over and above the
elements of the offense set forth in . . . § 2907.05(A) that enhance the penalty for
a [gross sexual imposition] conviction.”).4 The record strongly suggests that
Esqueda–Pina was convicted under § 2907.05(A)(4).
Even if Esqueda–Pina’s gross sexual imposition conviction was not under
§ 2907.05(A)(4), however, it would suffice to support the crime of violence
enhancement. Esqueda–Pina concedes that an offense under § 2907.05(A)(1)
would qualify as a crime of violence under § 2L1.2, but argues that no such
4
Kepiro and Nethers discuss a revised version of § 2907.05(A), but the prior version,
under which Esqueda–Pina was convicted, did not differ materially.
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offense can be proved in this case because the indictment to which he entered a
guilty plea states that he “purposely compelled Esqueda,” rather than the
twelve-year-old female victim, “to submit [to sexual contact] by force or threat
of force” (emphasis added). Esqueda–Pina’s counsel conceded at oral argument
the obvious fact that this was a typographical error. This concession is fully
supported by the indictment, which otherwise focuses exclusively on acts—rape,
vaginal intercourse with a minor, gross sexual imposition, and sexual contact
with a minor—that Esqueda–Pina allegedly committed against the twelve-year-
old victim. The district court was entitled to find a basis for enhancement on a
preponderance of the evidence. Andrade–Aguilar, 570 F.3d at 217. The
preponderance of the evidence showed that Esqueda–Pina was indicted for
purposely compelling the victim, and not himself, to submit by force to sexual
contact. Esqueda–Pina’s plea to that indictment would provide a proper basis
for enhancement. Under either of the subsections, therefore, the crime of
violence enhancement for the gross sexual imposition conviction was proper.
Esqueda–Pina resists this conclusion, contending that the district court
did not make any findings of fact as to whether the gross sexual imposition
conviction supported the crime of violence enhancement. He points to the
following exchange at sentencing:
Defense Counsel: Your Honor, we would except to the description
of the facts of the conviction made the basis of the 16-level
enhancement as they’re described in the PSI report.
The Court: Okay. And the objection is what? Just the lack of
proof?
Defense Counsel: Your Honor, we are actually maintaining that
this is not a crime of violence and that . . . the Government has
failed to meet its burden of proof with respect to that. I was
provided with documentation with respect to that case, your Honor.
We nonetheless believe that since it’s really—was eventually a
lesser included offense of the indictment, that there is no reference
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to the indictment itself and that the statute is overly broad, all
within the definition of a crime of violence.
The Court: Okay. I think looking at it, taking a common sense
approach, this does satisfy the definition of that enumerated offense.
The Court does find it’s a crime of violence.
Esqueda–Pina contends, citing his counsel’s reference to the “lesser included
offense,” that this exchange considered only whether the attempted rape
conviction provided a basis for enhancement and did not reach whether the gross
sexual imposition conviction would provide such a basis. He therefore urges that
this court remand to the district court for findings of fact as to gross sexual
imposition.
The argument that the district court did not make findings of fact as to
whether the gross sexual imposition conviction provided a basis for enhancement
is not persuasive. First, it is not clear that the district judge’s comment that
“looking at it[,] . . . this does satisfy the definition” refers only to the attempted
rape conviction. Esqueda–Pina’s counsel began by arguing that “the description
of the facts of the conviction made the basis of the 16-level enhancement as
they’re described in the PS[R]”—which cited both the attempted rape and the
gross sexual imposition convictions—did not support enhancement. Counsel
only later raised an argument specific to the rape charge. Esqueda–Pina does
not dispute that at sentencing, the district judge had before him the indictment,
judgment, and PSR, which together set out the facts relevant to the gross sexual
imposition conviction. The district court’s comment may have indicated that the
record as a whole—not just the attempted rape conviction—supported
enhancement.
More importantly, Esqueda–Pina ignores that later in the hearing, the
district court specifically adopted all of the factual findings contained in the
PSR, which included factual findings as to the gross sexual imposition conviction
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and its appropriateness as a basis for enhancing the sentence under § 2L1.2.
This adoption established sufficient findings of fact on the gross sexual
imposition issue. See United States v. Fernandez, 559 F.3d 303, 324 (5th Cir.
2009) (“[D]istrict courts need not ritualistically detail each possible finding.
When the findings in the PSR are so clear that guesswork by the reviewing court
is unnecessary, the sentencing judge may make implicit findings by adopting the
PSR.” (internal quotation marks omitted)). The district court did not err in
applying the sixteen-level enhancement under § 2L1.2(b)(1)(A)(ii).
III. The Criminal History Category Assessment
Esqueda–Pina also contends that the district court erred in assessing a
criminal history category of III. Esqueda–Pina concedes that he failed to raise
any objection to the district court’s assessment of his criminal history and that
plain error review therefore applies. To establish plain error, an appellant must
show a forfeited error that is clear or obvious and that affected his substantial
rights. Puckett v. United States, --- U.S. ---, 129 S. Ct. 1423, 1429 (2009).
Ordinarily, an error affects substantial rights only if it “‘affected the outcome of
the district court proceedings.’” Id. (quoting United States v. Olano, 507 U.S.
725, 734 (1993)). If the appellant makes this showing, “the court of appeals has
the discretion to remedy the error—discretion which ought to be exercised only
if the error ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Puckett, 129 S. Ct. at 1429 (quoting Olano, 507 U.S. at
736) (internal quotation marks omitted)).
Under the Guidelines, a defendant receives “3 points for each prior
sentence of imprisonment exceeding one year and one month.” U.S.S.G.
§ 4A1.1(a). Convictions resulting from the same charging instrument or imposed
on the same day are usually counted as a single sentence. See U.S.S.G.
§ 4A1.2(a)(2). Section 4A1.1(f), however, states an exception to this general rule:
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if a defendant received two or more prior sentences as a result of
convictions for crimes of violence that are counted as a single
sentence (see § 4A1.2(a)(2)), one point is added under § 4A1.1(f) for
each sentence that did not result in any additional points under
§ 4A1.1 (a) . . . . A total of up to 3 points may be added under
§ 4A1.1(f). For purposes of this guideline, “crime of violence” has the
meaning given that term in § 4B1.2(a).
U.S.S.G. § 4A1.1 cmt. n.6; see also U.S.S.G. § 4A1.1(f). Section 4B1.2(a), in turn,
defines a crime of violence as any state offense punishable by a term of
imprisonment more than one year that “has as an element the use, attempted
use, or threatened use of physical force” against another person or “otherwise
involves conduct that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(1), (2). Although the definitions of crime of
violence in § 2L1.2 and § 4B1.2 differ slightly in “structure and syntax,” other
Fifth Circuit panels have determined that these differences are inconsequential
and that the same analysis applies under each. See, e.g., Rayo–Valdez, 302 F.3d
at 318. A criminal history score of 2 or 3 points yields a criminal history
category of II; a criminal history score of 4, 5, or 6 points yields a criminal
history category of III. See U.S.S.G. ch. 5, pt. A (sentencing table).
The district judge, following the PSR’s recommendation, assessed 3 points
under § 4A1.1 for Esqueda–Pina’s 1997 Ohio conviction for attempted rape and
gross sexual imposition. The district judge also assessed an additional point
under § 4A1.1(f) because both the attempted rape and gross sexual imposition
convictions were crimes of violence. Esqueda–Pina contends that the district
court plainly erred in assessing the extra point because the government did not
establish that both of these convictions were for crimes of violence.
As to the attempted rape conviction, Esqueda–Pina does not dispute that
if he were convicted of attempt under either of the subsections described in the
indictment (pertaining to intercourse with a child less than thirteen or
intercourse compelled by force or threat of force), the sentence would qualify as
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a crime of violence under § 4A1.1(f). He renews his argument, however, that
Turner precludes such a finding because the 1997 judgment does not specify the
subsection of § 2907.02 under which he was convicted for attempt.
On plain error review, this argument is foreclosed by our precedent. We
addressed a substantially similar set of facts in United States v. Martinez–Vega,
471 F.3d 559 (5th Cir. 2006), in which the defendant was indicted for first degree
aggravated sexual assault on a child younger than 17 in violation of Texas Penal
Code § 22.021(a)(2)(B), but pled guilty to and was convicted of second degree
sexual assault under Texas Penal Code § 22.011. Id. at 561. The judgment
indicated that the plea was to “the lesser charge contained in the Indictment,”
but did not specify the subsection under which the defendant was convicted. Id.
at 562. Citing Turner, the defendant argued, as Esqueda–Pina does here, that
it was impossible to tell from the judgment whether he had been convicted under
the subsection applicable to sexual assault of a child, or instead under some
other subsection of the statute that did not qualify as a crime of violence. Id. at
561–62. We rejected this argument, stressing that unlike in Turner, the
defendant had not preserved his objection to the characterization of his prior
conviction as a crime of violence, so the court was “limited to plain error review.”
Id. at 563. The court observed that the judgment indicated that the defendant
pled guilty to “the lesser charge contained in the Indictment,” and reasoned that
there was no plain error in the district court’s conclusion that “the lesser charge”
referred to a lesser included version of the charged offense of first degree
aggravated sexual assault on a child younger than 17. Id. The 1997 judgment
against Esqueda–Pina likewise “entered a plea of guilty to the stipulated lesser
included offense of Count Two of the Indictment” (emphasis added). The district
court did not clearly err in concluding that “the lesser included offense” referred
to a lesser included offense under one of the subsections that related to the
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Case: 08-40418 Document: 00511013486 Page: 16 Date Filed: 01/27/2010
No. 08-40418
indictment, and therefore did not plainly err in treating Esqueda–Pina’s
attempted rape conviction as a crime of violence under § 4A1.1.
Nor was there error, plain or otherwise, in the district court’s conclusion
that the gross sexual imposition conviction was a second crime of violence that
rendered Esqueda–Pina eligible for a one-point enhancement under § 4A1.1(f).
In contending that the gross sexual imposition conviction did not so qualify,
Esqueda–Pina does not dispute that, absent the typographical error indicating
that Esqueda–Pina “purposely compelled Esqueda to submit by force or threat
of force,” either of the charged offenses would provide a proper basis for
concluding that Esqueda–Pina’s gross sexual imposition conviction was a crime
of violence. We have already rejected the contention that this typographical
error provided a basis for concluding that the conviction was not a crime of
violence. The district court’s one-point enhancement under § 4A1.1(f) was
proper.
IV. Conclusion
Accordingly, we AFFIRM the judgment of conviction and sentence of
the district court.
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