USA v. Soto-sanchez

• Decision Date: 05 October 2010
• Docket Number: No. 08-3541.,08-3541.
• Citation: 623 F.3d 317
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro SOTO-SANCHEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

623 F.3d 317

UNITED STATES of America, Plaintiff-Appellee,

v.Alejandro SOTO-SANCHEZ, Defendant-Appellant.

No. 08-3541.

United States Court of Appeals,Sixth Circuit.

Argued: July 29, 2010.

Decided and Filed: Oct. 5, 2010.

ARGUED: Jaime P. Serrat, Cleveland, Ohio, for Appellant. Phillip J. Tripi, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Jaime P. Serrat, Cleveland, Ohio, for Appellant. Laura McMullen Ford, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: GIBBONS and COOK, Circuit Judges; VAN TATENHOVE, District Judge. ^*

OPINION

VAN TATENHOVE, District Judge.

Alejandro Soto-Sanchez pled guilty to illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326. On appeal, Soto-Sanchez challenges his sentence. He contends that the district court erred by applying a sixteen-level enhancement to his offense level under U.S.S.G. § 2L1.2 based on his prior conviction for attempted kidnapping. For the reasons set forth below, we affirm Soto-Sanchez's sentence.

I.

A single-count Indictment charged Alejandro Soto-Sanchez with illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326. The Indictment noted that Soto-Sanchez had previously been removed and deported from the United States subsequent to a conviction for felony attempted kidnapping in Michigan state court in 2000. Soto-Sanchez pled guilty to the illegal reentry charge without the benefit of a plea agreement. At his rearraignment, the United States expressed its belief that Soto-Sanchez would be subject to a sixteen-level enhancement to his base offense level under the guidelines at sentencing because his prior attempted kidnapping conviction qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A). Soto-Sanchez indicated his intent to object to such an enhancement. The district court ordered the parties to brief the issue prior to sentencing.

The United States Probation Office prepared a presentence investigation report (“PSR”) which calculated Soto-Sanchez's base offense level at 8. ¹ As expected, the PSR recommended a sixteen-level enhancement to Soto-Sanchez's offense level based on his prior Michigan state court conviction. The PSR also recommended a three-level reduction due to Soto-Sanchez's acceptance of responsibility. With a total offense level of 21 and a criminal history category III, Soto-Sanchez's sentencing guideline range was 46 to 57 months.

At sentencing, the court heard oral arguments from the parties regarding the disputed guideline enhancement. After reviewing the Michigan kidnapping statute at issue, the district court found that Soto-Sanchez had been convicted of a crime of violence within the meaning of § 2L1.2(b)(1)(A). The court further found that it could not consider the police report related to Soto-Sanchez's attempted kidnapping conviction in determining whether the offense qualified as a crime of violence. Having determined that the PSR correctly calculated his guideline range, the district court sentenced Soto-Sanchez to 46 months in prison. This appeal followed.

II.

A.

“Sentences imposed post- Booker are reviewed for reasonableness-including for procedural error in the calculation of the guideline range such as defendant asserts in this case.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)). This Court reviews legal conclusions regarding the application of the United States Sentencing Guidelines de novo. United States v. Hover, 293 F.3d 930, 933 (6th Cir.2002). Accordingly, this Court reviews de novo the question of whether Soto-Sanchez's attempted kidnapping conviction constitutes a crime of violence for the purposes of U.S.S.G. § 2L1.2. See United States v. Garcia-Serrano, 107 Fed.Appx. 495, 496 (6th Cir.2004) (citing United States v. Humphrey, 279 F.3d 372, 379 (6th Cir.2002)).

B.

United States Sentencing Guideline § 2L1.2(a) prescribes a base offense level of 8 for those convicted of unlawfully entering the United States. Section 2L1.2(b)(1)(A)(ii) then directs that this offense level be increased sixteen levels if the defendant previously was deported after conviction for a felony that is a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary defines the term “crime of violence” for purposes of this section to mean “any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault ... or any other 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.” Id. at § 2L1.2, cmt. n. 1(B)(iii) (emphasis added). The commentary further explains 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.” Id. at § 2L1.2, cmt. n. 5 (emphasis added).

On appeal, Soto-Sanchez does not dispute that he was previously deported after a Michigan conviction for attempted kidnapping. Instead, he argues that the Michigan statute under which he was convicted is broader than the generic kidnapping offense contemplated by the guidelines. Accordingly, Soto-Sanchez contends that the Court must look further into the details of his conviction to determine whether he was necessarily convicted of generic kidnapping. Soto-Sanchez specifically urges the Court to examine the police report describing the incident that gave rise to the kidnapping charge and find that he did not commit a crime of violence.

In Taylor v. United States, 495 U.S. 575, 579, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court considered whether second-degree burglary under Missouri law constituted a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”), and specifically 18 U.S.C. § 924(e)(1). If so, a mandatory minimum sentence of fifteen years in prison would apply to the defendant. See Taylor, 495 U.S. at 578, 110 S.Ct. 2143; 18 U.S.C. § 924(e)(1). The statute at issue defined “violent felony” to include any crime punishable by imprisonment for a term exceeding one year that “is burglary....” Taylor, 495 U.S. at 578, 110 S.Ct. 2143 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The Court, however, found that “ ‘burglary’ in § 924(e) must have some uniform definition independent of the labels employed by the various States' criminal codes.” Id. at 592, 110 S.Ct. 2143. Specifically, the Court found that “Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most states.” Id. at 598, 110 S.Ct. 2143. The Court held that “a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599, 110 S.Ct. 2143.

The Taylor Court then adopted a categorical approach for ascertaining whether a defendant is subject to an enhanced penalty under the ACCA. Id. at 600, 110 S.Ct. 2143. Under this approach, the sentencing court is generally required to consider only the fact of conviction and the statutory definition of the prior offense in determining whether the defendant has committed a violent felony. Id. at 601, 110 S.Ct. 2143. The court may not consider the particular facts underlying the conviction. Id. at 600-01, 110 S.Ct. 2143.

In circumstances in which the state statute defines the crime more broadly than the generic offense, however, a modified categorical approach applies. See United States v. De Jesus Ventura, 565 F.3d 870, 874 (D.C.Cir.2009). Then, according to Taylor, the court may look beyond the statute and the fact of conviction to the indictment or information and jury instructions. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The court must determine whether these documents show that the jury was required to find all elements of the generic offense in order to convict the defendant. Id. In other words, the court still may not consider the details of the defendant's crime. See id. at 600-01, 110 S.Ct. 2143. The court may use these additional materials “only to determine which crime within a statute the defendant committed, not how he committed that crime.” See United States v. Woods, 576 F.3d 400, 405 (7th Cir.2009) (emphasis in original).

The Taylor Court adopted the categorical approach in part to avoid “the practical difficulties and potential unfairness” of a broader factual inquiry. Taylor, 495 U.S. at 601, 110 S.Ct. 2143. Of a fact-based approach, the Court asked, “Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses?” Id. The Court continued, “If the sentencing court were to conclude, from its own review of the record, that the defendant actually committed a generic [offense], could the defendant challenge this conclusion as abridging his right to a jury trial?” Id. Later, in Shepard v. United States, 544 U.S. 13, 25, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Supreme Court expanded on this reasoning, noting that allowing a sentencing judge to consider evidence of the facts of a prior offense raises the concerns underlying Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, it allows the sentencing judge to “make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea....” Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Sixth and Fourteenth Amendments, however, “guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence.” I...