U.S. v. Bonilla

• Decision Date: 10 April 2008
• Docket Number: No. 06-40894.,06-40894.
• Citation: 524 F.3d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Constantino BONILLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

524 F.3d 647

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Constantino BONILLA, Defendant-Appellant.

No. 06-40894.

United States Court of Appeals, Fifth Circuit.

April 10, 2008.

Kathlyn Giannaula Snyder, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Houston, TX, for Defendant-Appellant.

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

Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Carlos Constantino Bonilla ("Bonilla") pleaded guilty to being unlawfully present in the United States after deportation, in violation of 8 U.S.C. § 1326. The district court sentenced Bonilla to serve forty-one months in prison, followed by a three-year term of supervised release. Bonilla contends that the district court erred in adjusting his base offense level upward based upon his prior conviction for attempted manslaughter under New York Penal Law § 125.15. Bonilla also challenges the presumption of reasonableness that attaches to a sentence within a properly calculated guidelines range; and he challenges the constitutionality of § 1326(b)'s treatment of prior felony and aggravated felony convictions as sentencing factors. These latter two arguments are foreclosed by Supreme Court precedent.¹ Although the district court erred in applying the crime of violence enhancement, because it imposed a reasonable alternative non-guideline sentence, we affirm.

I

Bonilla pleaded guilty to his § 1326 offense of illegal reentry without the benefit of a plea agreement. The presentence investigation report ("PSR") calculated a base offense level of eight pursuant to U.S. SENTENCING GUIDELINES MANUAL ("USSG") § 2L1.2(a) (2005). The PSR recommended adding sixteen levels under USSG § 2L1.2(b)(1)(A)(ii) because Bonilla's New York conviction for attempted manslaughter qualified as a "crime of violence." The PSR then recommended subtracting three levels for acceptance of responsibility under USSG § 3E1.1(a) and (b). A total offense level of twenty-one, coupled with Bonilla's criminal history category of II, resulted in a recommended imprisonment range of forty-one to fifty-one months.

Bonilla lodged objections to the PSR. First, Bonilla objected to the sixteen-level enhancement on the ground that the government had not carried its burden of showing that his prior conviction for attempted manslaughter qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii). The PSR reveals that the crime occurred while the defendant was homeless, and he became embroiled in a fight over mattress space; he struck the victim over the head with a cinder block causing his death. Bonilla's attempted manslaughter conviction arose from his 1998 violation of § 125.15. Section 125.15 provides that:

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

2. He commits upon a female an abortional act which causes her death unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or²

3. He intentionally causes or aids another person to commit suicide.

N.Y. PENAL LAW § 125.15 (McKinney 2008). As proof of the conviction, the probation officer submitted the New York criminal information that originally charged Bonilla with committing second-degree manslaughter. There is no evidence that Bonilla was reindicted for the attempt charge. The probation officer also submitted the Certificate of Disposition ("COD"), which is a state record of the defendant's offense of conviction. The criminal information charged Bonilla with manslaughter in the second degree based on a violation of Section 125.15(1). However, the COD noted only that Bonilla pleaded guilty to attempted manslaughter in the second degree under § 125.15 without identifying the subsection under which Bonilla pleaded guilty. Bonilla contended that the COD did not establish the subdivision he violated and that the criminal information could not be used to establish that fact, as it did not charge the attempt crime to which Bonilla eventually pleaded. Because no particular subdivision could be identified, Bonilla argued that § 125.15 must be analyzed as a whole to determine whether it fits within the guidelines' definition as a crime of violence. He claimed that when analyzed as such, the statute did not fit within the generic, contemporary definition of manslaughter.

Bonilla raised further objections to the PSR that mirror his remaining arguments on appeal.³ At sentencing, Bonilla reurged these objections but the district court overruled them. The district court found that Bonilla's violation of Section 125.15 qualified under the guidelines as an enumerated offense of manslaughter, and thus as a crime of violence. The court sentenced Bonilla to a non-guideline sentence of forty-one months in prison, followed by a three-year term of supervised release, and a $100 mandatory assessment. Bonilla timely filed a notice of appeal.

II

Bonilla's first objection is that the district court erred in applying the crime of violence enhancement to determine his guideline sentence. Determining whether a prior offense qualifies as a crime of violence requires interpretation and application of the sentencing guidelines. We review a district court's interpretation and application of the guidelines de novo. See United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir.2004) (en banc) (reviewing de novo a district court's application of USSG § 2L1.2).

The application notes of USSG § 2L1.2 define a "crime of violence" in two different ways. A crime of violence either "(1) has the use, attempted use, or threatened use of physical force against the person of another as an element of the offense, or (2) it qualifies as one of several specifically enumerated offenses [including manslaughter]." United States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir.2006) (citing USSG § 2L1.2 cmt. n. 1(B)(iii)). Attempts can trigger a crime of violence enhancement. See USSG § 2L1.2 cmt. n. 5 (stating that "[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses"). In this case, the government argues only that Bonilla's offense under § 125.15 qualifies as the enumerated offense of "manslaughter." See USSG § 2L1.2 cmt. n. 1(B)(iii) (stating that "[c]rime of violence means any of the following ... manslaughter"). The parties dispute how specifically we can define the offense committed by Bonilla, as well as the documents we may use to make such a determination.

A

The New York law at issue here provides three separate subsections, each of which independently constitutes manslaughter in the second degree. To determine which subpart formed the basis of Bonilla's conviction, we may examine, "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." See United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir.2007) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

Bonilla argues that the district court erred by relying on the COD and the original criminal information charging him with second degree manslaughter to establish that his prior conviction amounted to a crime of violence. Bonilla contends that the district court could not use either document to "pare down" the statute in order to establish the subsection to which Bonilla pleaded guilty. Finally, he argues that Section 125.15, when taken as a whole, does not fit the guidelines definition of manslaughter, and therefore that his crime of violence enhancement was improper. The Government responds by arguing that the district court properly relied on the criminal information as well as the COD. These two documents, contends the Government, show that Bonilla's prior conviction qualifies as the enumerated offense of manslaughter.

Recent panel decisions of this court confirm Bonilla's position as to the criminal information. Because the criminal information charges a crime of which Bonilla was not convicted, it cannot be used to "pare down the statute of conviction to determine under which subsection [Bonilla] pleaded guilty." United States v. Neri-Hernandes, 504 F.3d 587, 590 (5th Cir.2007); see United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir.2007) (reaching same conclusion when defendant pleaded guilty to attempted kidnapping but indictment charged only aggravated kidnapping); see also United States v. Turner, 349 F.3d 833, 836 (5th Cir.2003) (holding that, in the context of USSG § 4B1.2, "a district court may not rely on a charging document without first establishing that the crime charged was the same crime for which the defendant was convicted"). Therefore, the district court could not consider the criminal information to establish that Bonilla's offense qualified as a crime of violence.⁴

As to the COD, we have recognized that New York Certificates of Disposition have "sufficient indicia of reliability" such that they can be used to establish the existence of a prior conviction. See Neri-Hernandes, 504 F.3d at 591-92 (distinguishing between establishing facts underlying prior conviction and existence of prior conviction). In Neri-Hernandes, the defendant argued that a COD did not provide sufficient evidence to establish a prior conviction for a crime of violence. We disagreed and noted that the Certificate in Neri-Hernandes' case "details [his] guilty plea and sentence, and it specifies a subsection of the statute under which Neri was convicted." Id. at 591 (emphasis added). Because the COD established the subsection of conviction, the court was able to find that Neri-Hernandes committed a crime of violence. Id. Bonilla's COD does not provide the same...