United States v. Efrain Martinez-Ortega

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0562n.06
FILED
Case No. 10-5956
May 31, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
EFRAIN MARTINEZ-ORTEGA, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
_______________________________________ )
BEFORE: BATCHELDER, Chief Circuit Judge; COLE and COOK, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. A federal jury convicted Efrain Martinez-
Ortega of illegal reentry by a deported alien following a conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2), and the court sentenced him to 46 months of
imprisonment. Martinez-Ortega claims that the district court erred when it applied certain
enhancements in the calculation of his sentence. For the reasons that follow, we find that Martinez-
Ortega’s challenges to his sentence have merit and, therefore, we vacate his sentence and remand the
case to the district court for complete resentencing.
I.
Martinez-Ortega is a Mexican national. In May of 2005, he pleaded guilty in a Tennessee
court to aggravated assault, in violation of Tenn. Code Ann. § 39-13-102, and received a sentence
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of three years of probation. On September 19, 2006, an Immigration Judge ordered Martinez-Ortega
removed from the United States.
Martinez-Ortega later returned to the United States without permission. On September 23,
2009, a federal grand jury indicted him on one count of illegal reentry by a deported alien following
a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He pleaded
guilty to the indictment.
At sentencing, the district court concluded that Martinez-Ortega’s prior Tennessee conviction
for aggravated assault constituted a “crime of violence” within the meaning of U.S.S.G. §
2L1.2(b)(1)(A)(ii) and added sixteen levels to his base-offense level. The court also determined that
the Tennessee conviction was an “aggravated felony” under 8 U.S.C. § 1326(b)(2) and set the
statutory maximum sentence at twenty years. Based on a Guidelines range of 46 to 57 months, the
court sentenced Martinez-Ortega to 46 months of imprisonment.
II.
Martinez-Ortega first claims that the court’s application of U.S.S.G. § 2L1.2’s sixteen-level
enhancement was improper because his Tennessee conviction does not constitute a “crime of
violence.” Under U.S.S.G. § 2L1.2, the sentencing court may apply a sixteen-level enhancement to
a defendant’s base-offense level for illegal reentry if the government establishes that the defendant’s
prior conviction was a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2009);1 United States v.
1
This enhancement reads:
If the defendant previously was deported, or unlawfully remained in the United States, after—
(A) a conviction for a felony that is . . . (ii) a crime of violence . . . increase by 16 levels[.]
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Bernal-Aveja, 414 F.3d 625, 626–27 (6th Cir. 2005) (“The government bears the burden of proving
that [the defendant] was previously convicted of a crime of violence . . . .”). We review de novo the
legal conclusion that a prior conviction constitutes a “crime of violence” for the purposes of U.S.S.G.
§ 2L1.2. United States v. Mendoza-Mendoza, 239 F. App’x 216, 222 (6th Cir. 2007).
The application notes to § 2L1.2 define a “crime of violence” by enumerating several
offenses, one of which is aggravated assault. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The notes further
provide that a non-enumerated offense is a crime of violence if it “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” Id.; see also
Mendoza-Mendoza, 239 F. App’x at 222 (referring to this as the “catch-all clause”). To determine
whether a prior conviction qualifies as an enumerated offense or, instead, fits within the catch-all
clause of § 2L1.2, a sentencing court must use a two-part, categorical approach in analyzing the
conviction. First, the court must look to the statute of conviction and determine whether the
language of the statute alone indicates that the defendant was convicted of a crime of violence.
United States v. Armstead, 467 F.3d 943, 947–48 (6th Cir. 2006). If the language of the statute
includes both violent and non-violent crimes, then the court may look to the indictment, plea
agreement, plea colloquy, or some other “comparable judicial record” from the prior conviction to
determine whether the defendant’s conduct was within the violent-crime aspect of the statute. Id.(quoting Shepard v. United States, 544 U.S. 13, 26 (2005)); see also United States v. Gibbs, 626 F.3d
U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2009). As one jurist recently noted, “This has to be a sentence only a grammar
teacher could love. W e have here our old nemesis the passive voice, followed by a scraggly expression of time
(‘previously . . . after’), then a train of prepositional phrases linked one after another and themselves rudely
interrupted by a pair of parenthetical punctuations.” United States v. Rosales-Garcia, 667 F.3d 1348, 1356 (10th
Cir. 2012) (Gorsuch, J., dissenting).
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344, 352 (6th Cir. 2010). The district court did not conduct this analysis in its calculation of
Martinez-Ortega’s sentence. Instead, the court applied the enhancement simply because aggravated
assault is listed in the application notes. Therefore, we will apply the categorical approach and
determine whether the court’s application of the enhancement was nevertheless proper. See United
States v. Davist, 481 F.3d 425, 427 (6th Cir. 2007) (“[W]e may affirm on any grounds supported by
the record, even [if those grounds are] different from the grounds relied on by the district court.”
(internal quotation marks and citation omitted)).
To establish that Martinez-Ortega’s prior conviction was a crime of violence, the government
presented the state court judgment of Martinez-Ortega’s conviction, which indicates that he pleaded
guilty to and was convicted of aggravated assault under Tenn. Code Ann. § 39-13-102. Although
this statute has four subsections, the judgment does not indicate which subsection Martinez-Ortega
admitted to violating. Therefore, we must determine “[i]f it is possible to violate the statute in a way
that would constitute a crime of violence and in a way that would not.” Gibbs, 626 F.3d at 352.
When the prior conviction is enumerated in the Guidelines’s section, as aggravated assault is in §
2L1.2, we compare the statute’s definition of the offense to a generic definition, such as that in the
Model Penal Code. See United States v. McMurray, 653 F.3d 367, 373 n.4 (6th Cir. 2011);
Mendoza-Mendoza, 239 F. App’x at 222 (adopting the reasoning of United States v. Mungia-
Portillo, 484 F.3d 813, 816–17 (5th Cir. 2007) (“When the statute of conviction encompasses
prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the
conviction is not a crime of violence as a matter of law.” (internal quotation marks omitted))).
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At the time of Martinez-Ortega’s conviction, Tennessee’s Aggravated Assault statute
provided, in relevant part:
(a) A person commits aggravated assault who:
(1) Intentionally or knowingly commits an assault as defined in § 39-13-101
and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon; or
(2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon.
(b) A person commits aggravated assault who, being the parent or custodian of a
child or the custodian of an adult, intentionally or knowingly fails or refuses to
protect such child or adult from an aggravated assault as defined in subdivision (a)(1)
or aggravated child abuse as defined in § 39-15-402.
(c) A person commits aggravated assault who, after having been enjoined or restrained by
an order, diversion or probation agreement of a court of competent jurisdiction from in any
way causing or attempting to cause bodily injury or in any way committing or attempting to
commit an assault against an individual or individuals, intentionally or knowingly attempts
to cause or causes bodily injury or commits or attempts to commit an assault against such
individual or individuals.
Tenn. Code. Ann. § 39-13-102 (2002).
The Model Penal Code defines aggravated assault as occurring when a person “‘(a) attempts
to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly
under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to
cause or purposely or knowingly causes bodily injury to another with a deadly weapon.’” United
States v. McFalls, 592 F.3d 707, 717 (6th Cir. 2010) (quoting Model Penal Code § 211.1(2)).
A comparison of these two definitions shows that the Tennessee statute “encompasses
prohibited behavior that is not within the plain, ordinary meaning” of aggravated assault. See
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No. 10-5956, United States v. Martinez-Ortega
Mungia-Portillo, 484 F.3d at 816. Specifically, the Model Penal Code definition requires, at the very
least, an attempt to cause bodily injury, while the Tennessee statute does not. The important
distinction lies in subsection (c) of section 39-13-102, which provides that a defendant can be
convicted of an aggravated felony by committing a simple assault while under a restraining order.
Simple assault in Tennessee includes “[i]ntentionally or knowingly caus[ing] physical contact with
another and a reasonable person would regard the contact as extremely offensive or provocative.”
Tenn. Code Ann. § 39-13-101(a)(3) (2002). Nothing in the record indicates that Martinez-Ortega’s
aggravated assault conviction was for committing extremely offensive physical contact while under
a restraining order. Nevertheless, because the government presented only the state court judgment
without any additional evidence that could indicate what section of the aggravated assault statute that
Martinez-Ortega violated, we must consider subsection (c). See McMurray, 653 F.3d at 373 (looking
at the entire statute where the record does not indicate a narrowed charge). Because someone can
be convicted of aggravated assault under section 39-13-102 without attempting to cause bodily
injury, the statute encompasses behavior that is not within the plain ordinary meaning of aggravated
assault and, therefore, does not qualify as an enumerated offense under U.S.S.G. § 2L1.2.
Although Martinez-Ortega’s prior conviction is not a crime of violence as an enumerated
offense under § 2L1.2, it may nevertheless qualify as a crime of violence if it falls under the catch-all
clause, which requires that the statute contain the “use, attempted use, or threatened use of physical
force” as an element. See United States v. Portela, 469 F.3d 496, 498 (6th Cir. 2006). We must
“look to the elements and the nature of the offense of conviction, rather than to the particular facts
relating to [the defendant’s] crime.” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). Because the
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No. 10-5956, United States v. Martinez-Ortega
government presented only the state court judgment, which does not indicate that Martinez-Ortega
was convicted under one of the subsections that requires the use of force as an element, we cannot
conclude that the use of force was a necessary element of his conviction.
Proceeding to the second step of the categorical analysis, we may consider additional
documents to determine if the nature of the conviction included bodily harm or force such that we
can conclude that Martinez-Ortega’s conviction was for a violation of subsection (a) or (b) of section
39-13-102. See Mendoza-Mendoza, 239 F. App’x at 219 (concluding that because the criminal
information stated that the defendant acted “recklessly,” the defendant must have pleaded guilty to
the recklessness subsection of the statute). Again, the government did not present any documents
other than the state judgment; and although we may consider judgments as part of the categorical
approach, Armstead, 467 F.3d at 948, the judgment here does not provide any further information
from which we can determine the nature of the conviction. Without additional documentation
establishing that Martinez-Ortega was convicted under one of the subsections that specifically
addresses violent conduct, the government failed to meet its burden of establishing that his prior
conviction constituted a crime of violence.
The government argues that we are not required to consider subsection (c) of the Tennessee
statute because the state court judgment implies that Martinez-Ortega’s conviction was either under
subsection (a) or (b). Specifically, the government argues that we can make this inference because
the judgment indicates that Martinez-Ortega was originally indicted for attempted rape, and,
therefore, aggravated assault must have been a lesser-included offense. The government’s argument,
however, ignores the basic principle of the categorical approach—we may not consider the
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underlying facts of the conviction that the defendant has not admitted. See Leocal, 543 U.S. at 7;
United States v. Louchart, — F.3d —, 2012 U.S. App. LEXIS 10619, at *6 (6th Cir. 2012)
(“Admission of facts from a guilty plea is limited to elements of the crime charged or those explicitly
admitted to by the defendant.”). The government presented only one document, and although it
indicates that Martinez-Ortega was indicted for attempted rape, it is impossible to discern which
facts Martinez-Ortega necessarily admitted when he pleaded guilty, not to attempted rape, but to
aggravated assault. See Shepard, 544 U.S. at 25–26. The categorical approach is meant “to avoid
‘the practical difficulties and potential unfairness’ of permitting a sentencing court to relitigate the
facts and delve into the details of a prior conviction.” Armstead, 467 F.3d at 949 (quoting Taylor
v. United States, 495 U.S. 575, 601 (1990)). Consideration of the attempted rape charge would not
only present practical difficulties, because the judgment does not even state a statutory section whose
language we could analyze, but it would also be decidedly unfair to the defendant, who may not have
admitted to any violent conduct in his plea.
Without further evidence that Martinez-Ortega admitted to intending to commit bodily injury
or the attempted use of force, the district court could not find that his prior conviction was for a
crime of violence. See also Armstead, 467 F.3d at 949 (“[W]here a defendant did not plead guilty
to, and therefore was not actually convicted of, the . . . charge contained in the indictment, the
indictment alone is insufficient to meet the government’s burden of proving that he was previously
convicted of a ‘crime of violence.’” (internal alterations and quotation marks omitted)).
Accordingly, we may not consider any inference that may arise from the name of the charge in
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No. 10-5956, United States v. Martinez-Ortega
Martinez-Ortega’s indictment.2 Because we cannot know what conduct from the indictment
Martinez-Ortega admitted “until and unless we are presented with additional evidence in a form
approved of by the Supreme Court[,]” we cannot conclude that his conviction under Tennessee’s
general aggravated assault statute qualifies as a “crime of violence” for the purposes of enhancing
his sentence. See id., 467 F.3d at 950.
Martinez-Ortega also challenges the district court’s ruling that his prior conviction is an
“aggravated felony” under 8 U.S.C. § 1326(b)(2), which increased the statutory maximum for the
offense to twenty years. This enhancement defines an “aggravated felony” as a “crime of violence
[as defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(F). The government bears the burden of proving by a preponderance of the evidence
that this enhancement applies. United States v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003). To
determine whether a district court properly applied § 1326(b)(2), we again employ the categorical
approach. Mendoza-Mendoza, 239 F. App’x at 218–19. We decline to review this claim because
the district court’s error regarding U.S.S.G. § 2L1.2’s sixteen-level enhancement is sufficient to
require remand for resentencing,3 but we note that the government’s presentation of the judgment
alone appears deficient in this context, as well. The government cannot meet its burden of proving
2
Likewise, we cannot consider the underlying facts of the charges that are outlined in the presentence report.
See United States v. Bartee, 529 F.3d 357, 361 (6th Cir. 2008). Presentence reports are not Shepard-approved
documents, and the facts included in them regarding the prior conviction should not be considered under the
categorical approach.
3
W e also decline to review Martinez-Ortega’s similar argument regarding the applicability of U.S.S.G. §
2L1.2’s eight-level enhancement, which is based on the same language that is used in § 1326’s aggravated-felony
analysis. The district court neither applied nor considered the enhancement, and, therefore, we will not address the
hypothetical question of its applicability.
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No. 10-5956, United States v. Martinez-Ortega
by a preponderance of the evidence that Martinez-Ortega’s prior conviction was an aggravated felony
simply on the basis of a state court judgment that is unclear as to the charge of conviction as well
as the term of imprisonment.
III.
For the foregoing reasons, we VACATE Martinez-Ortega’s sentence, and REMAND the
case for complete resentencing.
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