U.S. v. Herrera, 10–40500.

Citation647 F.3d 172
Decision Date13 July 2011
Docket NumberNo. 10–40500.,10–40500.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Joel Jonathan Parajon HERRERA, also known as Joel Estrada Gomes, also known as Joel J. Parajon Vaquedana, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

OPINION TEXT STARTS HERE

John Richard Berry, Asst. U.S. Atty., Houston, TX, for PlaintiffAppellee.Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Molly Estelle Odom, Asst. Fed. Pub. Defenders, Houston, TX, for DefendantAppellee.Appeal from the United States District Court for the Southern District of Texas.Before GARWOOD, SMITH and STEWART, Circuit Judges.CARL E. STEWART, Circuit Judge:

Joel Jonathan Parajon Herrera (Herrera) pled guilty to illegal re-entry into the United States. The district court sentenced Herrera to 46 months of imprisonment. In making its sentencing determination, the district court imposed a sixteen-level enhancement for a past conviction, which the district court determined was a “crime of violence” pursuant to United States Sentencing Guidelines (hereinafter Guidelines) § 2L1.2(b)(1)(A)(ii). We AFFIRM.

I.

On December 23, 2009, Herrera was charged by indictment with being found unlawfully in the United States following removal or deportation, in violation of 8 U.S.C. § 1326(a) and (b). A probation officer compiled Herrera's presentence investigation report (PSR). She found that Herrera was indicted for rape in violation of section 5–14–103 of the Arkansas Code and pled guilty to the lesser offense of sexual assault in the second degree in Malvern, Arkansas, on August 21, 2002. He was sentenced to 72 months' imprisonment for violating section 5–14–125 of the Arkansas Code (amended 2003 and 2009) (hereinafter Arkansas conviction). Following this conviction, Herrera was deported to Honduras. This determination was based on documents attached to the PSR—a copy of the criminal information, dated October 9, 2001, charging Joel Jonathan Parajon with rape; a copy of the judgment and commitment order, dated August 23, 2002; and a copy of the Departure Report.

Ultimately, the probation officer determined that Herrera's base offense level was 8, under Guidelines § 2L1.2(a).1 She also determined that the Arkansas conviction constituted a “crime of violence” and recommended imposition of the sixteen-level enhancement in § 2L1.2(b)(1)(A)(ii). The probation officer recommended a three-level reduction in offense level, under Guidelines §§ 3E1.1(a) and (b), for Herrera's acceptance of responsibility. Thus, Herrera's total offense level was 21. In regard to his criminal history, Herrera received 3 criminal history points for the sexual-assault conviction and 3 additional criminal history points for an illegal re-entry. This gave Herrera 6 criminal history points, which placed him in a criminal history category of III. His criminal history, combined with his offense level of 21, gave Herrera a sentencing range of 46 to 57 months.

On May 25, 2010, the district court sentenced Herrera to serve 46 months in prison, a three-year term of supervised release, and a $100 mandatory special assessment. In reaching its determination, the district court accepted the probation officer's recommendation in the PSR that Herrera's 2002 Arkansas conviction constituted a crime of violence under § 2L1.2(b)(1)(A)(ii). Herrera appealed, challenging the sixteen-level crime of violence enhancement.

II.
A.

Section 2L1.2 of the Guidelines explains that the offense level for unlawfully entering or remaining in the United States shall be increased by 16 levels if the defendant has a prior conviction for a “crime of violence.” § 2L1.2(b)(1)(A)(ii). The district court's characterization of Herrera's prior offense as a “crime of violence” is a question of law that we review de novo. United States v. Hernandez–Galvan, 632 F.3d 192, 196 (5th Cir.2011).

“Crime of violence” is defined in the Guidelines as:

... any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, 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.

U.S. Sentencing Guidelines § 2L1.2, cmt. n. 1(B)(iii) (2008). We have interpreted this provision to mean that a prior offense is a crime of violence if it: (1) has physical force as an element, or (2) qualifies as one of the enumerated offenses.” United States v. Gomez–Gomez ( Gomez II), 547 F.3d 242, 244 (5th Cir.2008) (en banc).2

To determine whether a specific offense constitutes one of the enumerated offenses, this court employs a ‘common sense approach’ based on the ‘generic, contemporary meaning’ of the terms used in the Guidelines.” Hernandez–Galvan, 632 F.3d at 196 (citing United States v. Moreno–Florean, 542 F.3d 445, 449 (5th Cir.2008)). In order to decipher a term's “contemporary meaning,” we consult sources, such as “the Model Penal Code, Professors LaFave's and Scott's treatises, modern state codes, and dictionaries.” United States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir.2006). To this end, [i]f the defendant was convicted under a statute following the generic definition with minor variations, or a statute narrower than the generic crime, the sentence enhancement may be applied.” United States v. Santiesteban–Hernandez, 469 F.3d 376, 378 (5th Cir.2006). However, [i]f the statute of conviction prohibits behavior that is not within the plain, ordinary meaning of the enumerated offense, the prior offense is not a crime of violence.” United States v. Olalde–Hernandez, 630 F.3d 372, 374 (5th Cir.2011) (citation and internal quotation marks omitted). We ground this analysis in the statute of conviction rather than the defendant's specific conduct.” Id. (citation and internal quotation marks omitted).

B.

On appeal, Herrera argues that the district court erred in applying the sixteen-level enhancement because he claims that his Arkansas conviction did not constitute a “crime of violence.” He claims that without the crime of violence enhancement his total offense level would be 13, and coupled with his criminal history category of III, he would only be eligible for a guideline imprisonment range of 18 to 24 months. We disagree and, for the following reasons, conclude that, as a matter of law, a conviction of sexual assault in violation of section 5–14–125 of the Arkansas Code constitutes a “crime of violence.”

1.

As previously explained, Herrera was charged with rape pursuant to section 5–14–103, but pled guilty to the lesser-included offense of second degree sexual assault pursuant to section 5–14–125. At the time of Herrera's 2002 conviction,3 section 5–14–125 provided:

(a) A person commits sexual assault in the second degree if the person:

(1) Engages in sexual contact with the sex organs of another person by forcible compulsion; or

(2) Engages in sexual contact of genitalia with another person who is incapable of consent because the person is physically helpless, mentally defective, or mentally incapacitated;

(3) Being eighteen (18) years of age or older, engages in sexual contact with the sex organs of another person, not the person's spouse, who is less than fourteen (14) years of age; or

(4)(A) Engages in sexual contact with another person who is less than eighteen (18) years of age and the person:

(i) Is employed with the Department of Correction, Department of Community Punishment, any city or county jail, or any juvenile detention facility, and the minor is in custody at a facility operated by the agency or contractor employing the person;

(ii) Is a professional under § 12–12–507(b) and is in a position of trust or authority over the minor; or

(iii) Is the minor's guardian, an employee in the minor's school or school district, or a temporary caretaker.

(B) For purposes of subdivision (a)(4)(A) of this section, consent of the minor is not a defense to prosecution.

(b) Sexual assault in the second degree is a Class B felony.

Ark.Code § 5–14–125 (2001).

We have no documents from which we can determine under what subsection of section 5–14–125 Herrera was found guilty. Therefore, we would typically examine the entire statute to determine whether his conviction constitutes a crime of violence.4 United States v. Rodriguez–Juarez, 631 F.3d 192, 193 (5th Cir.2011). However, under Arkansas law, violations of subsection (a)(3) and (a)(4) are not considered lesser-included offenses of rape. See Joyner v. State, 2009 Ark. 168, 303 S.W.3d 54, 60–61 (2009) (explaining that sexual assault violations that require more elements than rape are not considered lesser-included offenses of rape). Therefore, because Herrera pled guilty to the lesser-included of offense of rape, our analysis focuses on whether convictions for violating subsections (a)(1) and (a)(2) are crimes of violence.

2.
a. Subsection (a)(1)

Herrera claims that subsection (a)(1), sexual conduct by “forcible compulsion,” does not constitute a crime of violence because the definition of “forcible compulsion” is broader than the definition of “forcible sex act” in the Guidelines. “Forcible compulsion” is defined under Arkansas law as “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark.Code § 5–14–101. Thus, a party violates subsection (a)(1) if he engages in sexual conduct by using physical force or certain express or implied threats. Both acts are crimes of violence under the Guidelines.

To begin, the use of physical force in the commission of a sexual assault is explicitly listed as a crime of violence in the Guidelines. See § 2L1.2, cmt. n. 1(B)(iii...

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