United States v. Esqueda-Pina, 012710 FED5, 08-40418

Docket Nº:08-40418
Opinion Judge:KING, GARZA, and HAYNES, Circuit Judges
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE RICARDO ESQUEDA-PINA, Defendant-Appellant.
Judge Panel:Before KING, GARZA, and HAYNES, Circuit Judges.
Case Date:January 27, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOSE RICARDO ESQUEDA-PINA, Defendant-Appellant.

No. 08-40418

United States Court of Appeals, Fifth Circuit

January 27, 2010

Appeal from the United States District Court for the Southern District of Texas USDC No. 7:07-cr-01362

Before KING, GARZA, and HAYNES, Circuit Judges.

PER CURIAM [*]

Defendant-appellant Jose Ricardo Esqueda–Pina pleaded guilty to illegal reentry to the United States, in violation of 8 U.S.C. § 1326, and received a sentence of 46 months imprisonment and two years of supervised release. He now timely appeals his sentence. Esqueda–Pina contends that the district court improperly characterized his prior convictions for attempted rape and gross sexual imposition as crimes of violence and therefore erred in applying a sixteen-level enhancement under the 2007 United States Sentencing Guidelines. Esqueda–Pina also contends that the district court erroneously assessed an additional criminal history point, which improperly raised his criminal history category from II to III. For the following reasons, we affirm the sentence.

I. Factual and Procedural Background

Esqueda–Pina was charged in 2007 with illegal reentry to the United States in violation of 8 U.S.C. § 1326. He pleaded guilty on January 24, 2008, under a written plea agreement that reserved his right to appeal the sentence.

The presentence report (PSR) recommended a base offense level of eight under § 2L1.2(a) of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"). It also recommended a sixteen-level "crime of violence" enhancement under § 2L1.2(b)(1)(A)(ii) based on a 1994 incident for which Esqueda–Pina pled guilty to attempted rape and gross sexual imposition in Ohio state court in 1997. The PSR also assessed Esqueda–Pina's criminal history as category III, premised on four total criminal history points—three under U.S.S.G. § 4A1.1(a) for the 1997 conviction, and an additional point under U.S.S.G. § 4A1.1(f) because, according to the PSR, both the attempted rape and gross sexual imposition convictions qualified as crimes of violence. The resulting Guidelines range was 46 to 57 months.

Esqueda–Pina filed a written objection to the recommended sixteen-level enhancement, arguing that the Ohio conviction for attempted rape was not a crime of violence under § 2L1.2(b)(1)(A)(ii) of the Guidelines. Esqueda–Pina did not specifically object to the characterization of his conviction for gross sexual imposition as a crime of violence, although he did argue more generally that the government did not meet its burden of proving that he had been convicted of a crime of violence under § 2L1.2(b)(1)(A)(ii). Esqueda–Pina did not object to the PSR's assessment of his criminal history category.

At the sentencing hearing, Esqueda–Pina reurged his general objection that the government had not met its burden of proof in establishing the § 2L1.2(b)(1)(A)(ii) crime of violence enhancement and his specific objection that the attempted rape conviction did not provide a basis for enhancement. The district judge responded that "looking at it, taking a common sense approach, this does satisfy the definition of that enumerated offense. This court does find it's a crime of violence." The court then adopted the PSR's findings of fact. After granting a three-level reduction for acceptance of responsibility, the district court sentenced Esqueda–Pina to 46 months imprisonment (at the bottom of the Guidelines range) and two years of supervised release. Esqueda–Pina timely appealed this sentence.

We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), (2). In evaluating Esqueda–Pina's challenges to the sentence, we review the district court's factual findings for clear error and its application and interpretation of the Guidelines de novo, United States v. Gould, 529 F.3d 274, 276 (5th Cir. 2008), unless no timely objection was raised, in which case plain error review applies, United States v. Gonzalez–Ramirez, 477 F.3d 310, 311 (5th Cir. 2007).

II. The Crime of Violence Enhancement

Esqueda–Pina contends that neither his attempted rape nor his gross sexual imposition conviction qualifies as a crime of violence for purposes of enhancement under § 2L1.2(b)(1)(A)(ii). This section imposes a sixteen-level enhancement if a defendant was previously deported for a crime of violence, which the Guidelines Application Notes define as:

any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any 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.S.G. § 2L1.2 cmt. n.1(B)(iii). In short, an offense will qualify as a crime of violence either if it has the requisite "force" element described in the last phrase of this definition, or if it is one of the offenses specifically enumerated in this definition. See United States v. Rayo–Valdez, 302 F.3d 314, 316 (5th Cir. 2002).

In determining whether an offense qualifies as a crime of violence under § 2L1.2, the court does "not look to [the defendant's] actual conduct[, but instead] consider[s] the offense categorically by looking only to the fact of conviction and the statutory definition of the prior offense." United States v. Gomez–Gomez, 547 F.3d 242, 244 (5th Cir. 2008) (en banc) (internal quotation marks omitted). If some part of the statute prohibits conduct that is not a crime of violence, then a defendant's conviction under that statute is not a crime of violence unless the government can establish that the defendant was not convicted under that part. Id. at 244–45. To determine the part or parts of a statute under which a defendant was convicted, the district court "can look to those facts contained in the charging papers and that are necessary to the verdict or the plea." United States v. Carbajal–Diaz, 508 F.3d 804, 809 (5th Cir. 2007); see also United States v. Bonilla–Mungia, 422 F.3d 316, 320 (5th Cir. 2005) ("If a statute contains multiple, disjunctive subsections, courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defendant's conviction." (internal quotation marks omitted)). The government must "prove by a preponderance of the relevant and sufficiently reliable evidence" the facts necessary to establish that the prior conviction was a crime of violence. See United States v. Andrade–Aguilar, 570 F.3d 213, 217 (5th Cir. 2009).

A. Attempted Rape

Esqueda–Pina contends that his attempted rape conviction does not provide a basis for enhancement under § 2L1.2(b)(1)(A)(ii). Esqueda–Pina was indicted for rape but pled guilty to the lesser included offense of attempted rape. Count Two of the Ohio indictment contained the rape charge and stated, in relevant part:

[I]n violation of section 2907.02 of the Ohio Revised Code, [Esqueda–Pina] did engage in sexual conduct, to wit: vaginal intercourse, with [the female victim], not his spouse and the said [victim] being less than thirteen (13) years of age, to wit: twelve (12) years of age, and/or . . . Esqueda having purposely compelled [the victim] to submit by force or threat of force.

The parties do not dispute that only two subsections of § 2907.02 correspond to the conduct described in the indictment. These subsections read:

(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

. . . .

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person

. . . . .

(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

Ohio Rev. Code Ann. § 2907.02 (1994). The 1997 judgment reflects that Esqueda–Pina "entered a plea of guilty to the stipulated lesser included offense of Count Two of the Indictment, to wit: attempted Rape, a violation of Section 2923.02 as it relates to 2907.02 of the Ohio Revised Code."1

Esqueda–Pina does not dispute that if he had pled guilty to an attempted violation of either § 2907.02(A)(1)(b) or § 2907.02(A)(2), the subsections that correspond to the indictment, the resulting conviction would provide a basis for imposing the crime of violence enhancement under § 2L1.2(b)(1)(A)(ii). As to § 2907.02(A)(1)(b), this is consistent with our precedents, which hold that sexual contact with a child fulfills the enumerated offense under § 2L1.2(b)(1)(A)(ii) of "sexual abuse of a minor." See, e.g., United States v. Najera–Najera, 519 F.3d 509, 512 (5th Cir. 2008). As to § 2907.02(A)(2), this is consistent with the plain language of the definition of crime of violence under § 2L1.2(b)(1)(A)(ii), which states that the enhancement should apply to any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Esqueda–Pina argues, however, that it is not clear from the judgment that he pled guilty to attempt under those subsections. Esqueda–Pina points out that the judgment reflects only that he pled guilty to an attempted version of § 2907.02 generally, and argues that the judgment might therefore reflect that he pled guilty to attempting to violate a different subsection of that statute—one that does not qualify as a crime of violence under § 2L1.2.2

In support of this argument, Esqueda–Pina points to United States v. Turner, 349 F.3d 833 (5th Cir. 2003), in which the defendant was indicted for "burglary of...

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