United States v. Panzo-Acahua, Ignaci

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 4, 2006
Decided May 31, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2188
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin
v.
No. 04-CR-151-C-01
IGNACIO PANZO-ACAHUA,
Defendant-Appellant. Barbara B. Crabb,
Chief Judge.
ORDER
After a traffic stop revealed that Ignacio Panzo-Acahua was in the United
States without authorization after being removed, he pleaded guilty to that offense.
See 8 U.S.C. § 1326(a). His removal had followed a prior Wisconsin conviction for
“third degree sexual assault,” which, the district court held, constituted a conviction
for sexual abuse of a minor. The court therefore concluded that Panzo-Acahua was
subject to the enhanced statutory maximum under 8 U.S.C. § 1326(b)(2) because
sexual abuse of a minor is an aggravated felony. The court also increased his base
offense level under the sentencing guidelines because sexual abuse of a minor is a
crime of violence. On appeal Panzo-Acahua challenges the court’s conclusion that
he assaulted a minor. But counsel conceded that the victim was a minor, and so we
affirm his sentence.
No. 05-2188 Page 2
A Wisconsin police officer followed the car Panzo-Acahua was driving after
noticing that it was missing its front license plate. When the car stopped at an
apartment complex, the officer spoke with Panzo-Acahua and his sixteen-year-old
female passenger and determined that Panzo-Acahua, who was twenty-two at the
time, was in the United States illegally. Panzo-Acahua was charged by indictment
with one count of being in the United States without authorization after having
been removed. The indictment included separate sentencing allegations that he
committed the offense after being deported for committing an “aggravated felony”
and a “crime of violence.”
Panzo-Acahua moved to suppress evidence obtained from the traffic stop on
the basis that the stop was an unlawful detention. A magistrate judge held a
hearing on the motion, and Panzo-Acahua called as a witness his female passenger,
who described herself as a “friend” of Panzo-Acahua and said she was sixteen in
September 2004 when the stop occurred. On cross-examination, the government
asked her whether she was actually Panzo-Acahua’s girlfriend (she responded no)
and whether she was the same girl he had been convicted of sexually assaulting.
Panzo-Acahua’s counsel objected, arguing that the requested information was
irrelevant. The girl, whose initials are CML, did not answer the question and was
removed from the courtroom. The government then represented to the court that
the victim of the sexual assault for which Panzo-Acahua had been convicted was the
passenger, who was fifteen at the time of the assault. The court asked defense
counsel whether Panzo-Acahua would stipulate that “she was a victim of a statutory
sexual assault under Wisconsin law, that the victim was Ms. L, that it was
apparently a consensual relationship but nonetheless illegal, that that was the
basis for [Panzo-Acahua] being deported the first time.” The following exchange
ensued:
[COUNSEL]: Almost, Your Honor. I’m just in a poor position
because I don’t know whether it was consensual. I never talked to my
client about this. And to concede that seems to me to help their bias
argument and that—I don’t think that that’s the case under Wisconsin
law, a person her age. I think—well, I’m trying to think when her
birthday was but it’s getting close to 15 years old.
THE COURT: Sixteen-year-olds and younger are deemed
incapable of giving consent.
[COUNSEL]: Right, so the law seems to say this is by definition—
THE COURT: Okay.
No. 05-2188 Page 3
[COUNSEL]: —a coercive relationship.
The parties then stipulated that the prior offense “was not a forcible sexual
assault.” The magistrate judge ultimately recommended denying the motion to
suppress, and the district court adopted the report and recommendation. Panzo-
Acahua eventually pleaded guilty to the § 1326(a) charge.
In the presentence report the probation officer characterized Panzo-Acahua’s
prior conviction for third-degree sexual assault, see Wis. Stat. § 940.225(3), as one
for a crime of violence. Consequently, the probation officer concluded that Panzo-
Acahua was subject to both an increased statutory maximum and an upward
adjustment in his base offense level under the sentencing guidelines. Although the
probation officer did not clarify what “crime of violence” he was referring to, the
parties understood him to mean sexual abuse of a minor. Sexual abuse of a minor
constitutes an aggravated felony, and the statutory maximum for a defendant
removed after committing an aggravated felony is 20 years. 8 U.S.C. §§ 1326(b)(2),
1101(a)(43)(A). The guidelines further provide for a 16-level increase where a
defendant was deported after committing a crime of violence, and sexual abuse of a
minor qualifies as a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt.
n.1(B)(iii).
Before sentencing Panzo-Acahua objected to the characterization of his prior
offense as a crime of violence. He focused on the fact that the prior conviction was
not for “statutory rape” and did not involve the use of force. To show that he had
not been convicted of a forcible offense, Panzo-Acahua attached to his written
objection the state-court judgment convicting him of third degree sexual assault in
violation of Wis. Stat. § 940.225(3). That statute provides: “Whoever has sexual
intercourse with a person without the consent of that person is guilty of a Class G
felony. Whoever has sexual contact in the manner described in sub. (5)(b)2. with a
person without the consent of that person is guilty of a Class G felony.” Panzo-
Acahua also attached a criminal complaint charging him with violating a different
provision, Wis. Stat. § 948.02(2), for allegedly having sexual contact with a victim
under age sixteen. In response the government conceded that Panzo-Acahua had
been convicted of the lesser crime of third degree sexual assault under § 940.225(3),
not the more-serious violation of § 948.02(2) alleged in the information. But the
government argued that the conviction was still the “functional equivalent” of
“statutory rape” and “sexual abuse of a minor”; though conceding that § 948.02(2)
explicitly covers those offenses, the prosecutor asserted that “[b]y pleading guilty,
defendant admitted having sexual intercourse with CML” when “CML was only 15.”
The government, however, did not produce a plea agreement, a transcript of the
plea colloquy, or any other documentation of Panzo-Acahua’s prior conviction to
back up its representations that the victim was fifteen. The only documentary
No. 05-2188 Page 4
evidence of Panzo-Acahua’s conviction is the judgment he provided, which does not
identify the victim or give the victim’s age.
The sentencing court held that Panzo-Acahua’s conviction for third degree
sexual assault was a conviction for sexual abuse of a minor and adopted the
probation officer’s guidelines calculations. In arriving at that conclusion, the
district court reasoned: “We have a 15-year-old girl who was the subject of a sexual
assault. I don’t see how anything could be clearer than that that is sexual abuse of
a minor.” The court did not identify the evidence it relied upon in finding that the
victim of Panzo-Acahua’s assault was fifteen. After discussing the factors under 18
U.S.C. § 3553(a), the court sentenced Panzo-Acahua to 36 months’ imprisonment.
Panzo-Acahua first challenges the conclusion that his Wisconsin conviction
for third degree sexual assault constitutes sexual abuse of a minor and is thus a
crime of violence within the meaning of the U.S.S.G. § 2L2.1(b)(1)(A)(ii). He argues
that the sentencing court improperly relied on the criminal complaint underlying
the dismissed charge of having sexual contact with a child under sixteen to conclude
that the victim of his third degree sexual assault was a minor. Without looking at
that information in the dismissed complaint, he insists, there was no way for the
court to conclude he assaulted a minor.
In determining whether a prior conviction was for sexual abuse of a minor,
this court begins by considering only the elements of the statute and the language
of the indictment—the so-called categorical approach. United States v. Martinez-
Carillo, 250 F.3d 1101, 1104 (7th Cir. 2001) (quoting Lara-Ruiz v. INS, 241 F.3d
934, 941 (7th Cir. 2001)). Here, the Wisconsin statute under which Panzo-Acahua
was convicted makes no distinctions based on age. See Wis. Stat. § 940.225(3); see
also Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir. 2005) (noting that Illinois
solicitation statute reaches conduct aimed at adults as well as minors). And no
indictment or document charging Panzo-Acahua with violating § 940.225(3) that
might include some factual allegations is in the record.
When the statute or charging documents are ambiguous about a defendant’s
prior conviction, courts may take a peek at other information in the record. See
Martinez-Carillo, 250 F.3d at 1140. That information, though, is limited to a plea
agreement, transcript of plea colloquy, or an admission by the defendant. See
Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). Even though Shepard
interprets the Armed Career Criminal Act, 18 U.S.C. § 924(c), the same approach
governs recidivism adjustments under the sentencing guidelines too. See United
States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005); United States v. Shannon, 110
F.3d 382, 385 (7th Cir. 1997) (en banc) (recognizing that sentencing courts may look
beyond charging documents only if to do so would not require hearing to resolve
contested factual issues). Here the government did not introduce a plea agreement
No. 05-2188 Page 5
or a transcript of any plea colloquy but argues that the sentencing court could rely
on the criminal complaint because, the government says, Panzo-Acahua admitted
the substance of the complaint by introducing it. But Panzo-Acahua submitted the
complaint only to emphasize that his offense of conviction, third degree sexual
assault, is a different crime than the one alleged in the complaint. And his
conviction for a crime that is not only different but lesser than that alleged in the
criminal complaint in no way shows that he admitted the complaint’s version of
facts. See United States v. Hoults, 240 F.3d 647, 651 (7th Cir. 2001) (holding that
district court erred in determining under U.S.S.G. § 4B1.2(a)(2) that defendant had
committed burglary of dwelling where references to dwelling or residential place
were deliberately scratched from the information to which defendant later pleaded);
United States v. Bernal-Aveja, 414 F.3d 625, 627-28 (6th Cir. 2005) (agreeing with
United States v. Bennett, 108 F.3d 1315, 1318-19 (10th Cir. 1997), and United States
v. Spell, 44 F.3d 936, 940 (11th Cir. 1995), that where defendant pleads guilty to a
lesser charge than that in indictment, indictment alone is insufficient to prove
defendant was previously convicted of crime of violence).
Nevertheless, Shepard does not help Panzo-Acahua because at the hearing on
his motion to suppress, he, through his counsel, handed the district court the
evidence necessary to find that his offense of conviction actually involved sexual
abuse of a minor. See United States v. Washington, 417 F.3d 780, 788 (7th Cir.
2005) (holding Shepard of no assistance to defendant where he admitted at
sentencing that he had reviewed and discussed his presentence report with his
attorney and had no objections). Just before stipulating that his prior conviction
involved a non-forcible sexual assault, Panzo-Acahua’s counsel elicited the age of
the passenger, CML, and agreed that she was the victim of the third degree sexual
assault his client pleaded guilty to. Thus, although Panzo-Acahua later objected to
the characterization of the crime as involving a minor, the damage was already
done. See United States v. Alvarez-Martinez, 286 F.3d 470, 475-76 (7th Cir. 2002)
(concluding that defendant’s initial failure to object to facts presented in
presentence report, though he later objected after he failed to appear for sentencing
and was caught, was de facto stipulation to those facts); Gattem, 412 F.3d at 761 n.4
(noting that alien admitted age of prior victim through counsel) .
Panzo-Acahua’s remaining argument is that the court violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), by finding that his victim was a minor because
that is a fact beyond the fact of conviction that was used to enhance the statutory
maximum for his offense. His statutory maximum was increased to twenty years
under 8 U.S.C. § 1326(b)(2) because the court adopted the sentencing
recommendation characterizing Panzo-Acahua’s third degree sexual assault as an
aggravated felony, which includes sexual abuse of a minor. See 8 U.S.C.
§ 1101(a)(43). But that increase was proper because the analysis above—concluding
that Panzo-Acahua’s third degree sexual assault constituted sexual abuse of a
No. 05-2188 Page 6
minor because he admitted his victim’s age—applies equally here. See Martinez-
Carillo, 250 F.3d at 1104 (holding that defendant’s prior conviction constituted
“aggravated felony” because age of victim established that he had committed sexual
abuse of a minor). And because the fact of his victim’s age simply establishes his
recidivism under § 1326(b)(2), he was not entitled to have it proven to a jury beyond
a reasonable doubt. See Almendarez-Torres v. United States, 523 U.S. 224, 247
(1998) (excluding fact of defendant’s recidivism from range of facts that must be
proven to jury before increasing statutory penalties); United States v. Williams, 410
F.3d 397, 402 (7th Cir. 2005) (determining that sentencing courts may make
findings as to fact and nature of prior convictions).
We therefore AFFIRM Panzo-Acahua’s sentence.