U.S. v. Velazquez-Overa

• Decision Date: 15 November 1996
• Docket Number: VELAZQUEZ-OVER,No. 96-40216,D,96-40216
• Citation: 100 F.3d 418
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martinefendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 418

100 F.3d 418

UNITED STATES of America, Plaintiff-Appellee, v. Martin VELAZQUEZ-OVERA, Defendant-Appellant.

No. 96-40216

United States Court of Appeals Fifth Circuit

November 15, 1996.

Allen Harvey Hurst, Assistant U. S. Attorney, US Attorney's Office, Tyler, TX, for plaintiff-appellee.

Wayne R Dickey, Office of the Federal Public Defender, Tyler, TX, for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This appeal requires the court to resolve a question of first impression in this circuit: whether a state penal statute proscribing indecency with a child is a crime of violence for the purpose of sentence enhancement under Section 2L1.2 of the United States Sentencing Guidelines. We hold that indecency with a child involving sexual contact, a felony under Texas law, is a crime of violence because it entails a substantial risk that physical force may be used against the victim. Rejecting the appellant's attacks on the sentence imposed by the district court, we affirm the judgment and sentence of the district court.

I.

Martin Velazquez-Overa, a citizen of Mexico, was deported from the United States as a criminal alien on May 3, 1995. Velazquez-Overa previously had been convicted in Texas state court of four felony offenses of indecency with a child. Tex. Penal Code Ann. 21.11 (West 1994 & Supp. 1996). These offenses took place during a sixteen-month period in 1993 and 1994 and involved four different female victims. The headings of three of the state indictments listed the charge against Velazquez-Overa as "INDECENCY WITH A CHILD -- SEXUAL CONTACT." The heading of the fourth indictment listed the charge simply as "INDECENCY WITH A CHILD" but the text of the indictment specified that this offense too involved "sexual contact [with] a child younger than 17 years of age." Velazquez-Overa was assessed a term of imprisonment of ten years as to each of these convictions.

Four days after his deportation, Velazquez-Overa returned to the United States, and eventually to his home in Winnsboro, Texas. His presence soon attracted the interest of local police and federal immigration authorities, who ascertained that Velazquez-Overa's presence in the country was unlawful. Velazquez-Overa was duly indicted in the Eastern District of Texas on one count of illegal reentry by a criminal alien. 8 U.S.C. 1326(a), (b)(2). He pleaded guilty on August 24, 1995, and was sentenced to 90 months in prison on January 22, 1996. He appeals his sentence.

II.

The district court calculated Velazquez-Overa's 90-month prison term on the basis of the federal sentencing guidelines. See generally United States Sentencing Commission, Guidelines Manual (1995). At the heart of the Sentencing Guidelines is a chart, the Sentencing Table, which indicates the authorized sentence range based on two independent variables: the defendant's offense level and his criminal history category. U.S.S.G. Ch. 5 Pt. A (Sentencing Table). In this case, the district court assigned Velazquez-Overa an offense level of 21 and a criminal history category of VI, yielding an authorized sentence range of 77 to 96 months. See id. Based on the recommendation in the probation officer's presentence investigation report, the district court imposed a sentence of 90 months.

Velazquez-Overa objected to the district court's calculation of both his offense level and his criminal history category. He renews these contentions on appeal, arguing that he should have been assigned an offense level of 10 and a criminal history category of V, for a sentence range of 21 to 27 months. See id.

III.

Appellant's sentence must be affirmed unless it was imposed in violation of law or was based upon an erroneous application of the Sentencing Guidelines. See, e.g., United States v. Guadardo, 40 F.3d 102, 103 (5th Cir. 1994); United States v. Ford, 996 F.2d 83, 85 (5th Cir. 1993), cert. denied, 510 U.S. 1050, 114 S. Ct. 704, 126 L. Ed. 2d 670 (1994).¹ An appeal challenging the district court's interpretation of the Sentencing Guidelines raises a question of law subject to de novo review. Ford, 996 F.2d at 85 (citation omitted).

A. Offense Level

The starting point for calculating the sentence of a criminal alien convicted of illegally reentering the United States is Section 2L1.2 of the Sentencing Guidelines. See U.S.S.G. 2L1.2 (Unlawfully Entering or Remaining in the United States); U.S.S.G. App. A (Statutory Index). That section assigns the defendant a base offense level of eight. U.S.S.G. 2L1.2(a). However, if the defendant previously was deported after being convicted of a felony (excluding a violation of the immigration laws), his offense level is increased by four. U.S.S.G. 2L1.2(b)(1). If the defendant previously was deported after being convicted of an aggravated felony, his offense level is increased by sixteen. U.S.S.G. 2L1.2(b)(2). Consequently, there is a significant difference in the defendant's sentence depending on whether his prior offense is deemed a "felony" or an "aggravated felony."²

The commentary to Section 2L1.2 defines "aggravated felony" to include:

any crime of violence (as defined in 18 U.S.C. 16, not including a purely political offense), for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years . . . .

U.S.S.G. 2L1.2, Application Note 7.

Accordingly, whether a crime is an "aggravated felony" within the meaning of Section 2L1.2(b)(2) turns on the definition in 18 U.S.C. 16. That statute states:

The term "crime of violence" means--

(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.

Subsection (a) is plainly inapplicable; physical force is not an element of the crime of indecency with a child as defined by the state of Texas. Rather, the issue in this appeal is whether the conduct proscribed by the Texas indecency statute, "by its nature, involves a substantial risk that physical force . . . may be used . . . ." 18 U.S.C. 16(b).

This court not long ago explicated the meaning of the term "substantial risk" as it is used in the statute. We stated:

A substantial risk that an event may occur does not mean that it must occur in every instance; rather, a substantial risk requires only a strong probability that the event, in this case the application of physical force during the commission of the crime, will occur.

United States v. Rodriguez-Guzman , 56 F.3d 18, 20 (5th Cir. 1995). See id. at 20 n.8 (explaining that "force" in this context means "destructive or violent force").

We also explained that the phrase "by its nature" compels a categorical approach to determining whether an offense is a crime of violence under Section 16(b). In holding that burglary of a vehicle or nonresidential building is a violent crime for sentence enhancement purposes, the court repudiated an earlier suggestion that sentencing courts may sometimes need to examine the underlying facts of defendants' prior convictions. Rodriguez-Guzman, 56 F.3d at 21 n.14 (criticizing Guadardo, 40 F.3d at 105). The reason is clear: either 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. There is accordingly no need to consider the conduct underlying the defendant's conviction. A sentencing court need only consider the fact that he was convicted and the inherent nature of the offense. As we explained:

If a crime by its nature presents a substantial risk that force will be used against the property [or person] of another, then it falls within the ambit of 16(b) whether [or not] such force was actually used in the crime.

Rodriguez-Guzman, 56 F.3d at 21 n.14.

This approach is consistent with the Supreme Court's opinion in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (holding that burglary is a violent felony for purposes of sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. 924(e)). The Court in Taylor stated that "Congress generally took a categorical approach to predicate offenses." 495 U.S. at 601, 110 S. Ct. at 2159. The Court further noted that "the practical difficulties and potential unfairness of a factual approach are daunting." Id. The Court reasoned that Congress did not intend sentencing hearings to become retrials of the underlying conduct involved in the defendant's prior federal or state convictions. Id. at 601, 110 S. Ct. at 2159-60.

Other circuits have elaborated on the merits of the categorical approach to predicate offenses. The Eleventh Circuit explained that the categorical approach is:

consistent with the overall objectives of the Sentencing Guidelines themselves. The guidelines, at least in part, constitute an effort by the Commission to design a sentencing system that reduces disparities in the sentences of defendants convicted of similar crimes. Taking into account the myriad of subtle differences in the commission of every recognized crime of violence would result in as many different sentences.

United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990) (citation omitted), cert. denied, 500 U.S. 933, 111 S. Ct. 2056, 114 L. Ed. 2d 461 (1991). Accord United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993) (stating that "a court must only look to the statutory definition, not the underlying circumstances of the crime," in deciding whether an offense is "by its nature" a crime of violence under 18 U.S.C. 16(b)). See also United States v. Rodriguez, 979 F.2d 138,...