U.S. v. Alfaro, 04-40176.

• Decision Date: 28 April 2005
• Docket Number: No. 04-40176.,04-40176.
• Citation: 408 F.3d 204
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alfredo ALFARO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.3d 204

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Alfredo ALFARO, Defendant-Appellant.

No. 04-40176.

United States Court of Appeals, Fifth Circuit.

April 28, 2005.

James Lee Turner, Asst. U.S. Atty. (argued), Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks (argued), Asst. Fed. Pub. Def., Houston, TX, for Alfaro.

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

Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.

KING, Chief Judge:

Defendant-Appellant Carlos Alfredo Alfaro pled guilty to being knowingly and unlawfully present in the United States following deportation, in violation of 8 U.S.C. § 1326, 6 U.S.C. § 202, and 6 U.S.C. § 557. At sentencing, the district court increased his offense level by sixteen points pursuant to UNITED STATES SENTENCING GUIDELINES ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii) (2002), which provides for an enhancement if the defendant previously had been convicted of a "crime of violence." Alfaro now appeals his sentence of fifty months, arguing that the district court erred by: (1) enhancing his sentence sixteen levels; (2) assigning a criminal history point for Alfaro's prior conviction for evading arrest; (3) failing to find that 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional; and (4) sentencing him under the mandatory guidelines regime supplanted by United States v. Booker, ___ U.S. ____, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We VACATE Alfaro's sentence and REMAND for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 2003, Border Patrol agents found Alfaro, a citizen of El Salvador, in Freer, Texas, after he had illegally entered the United States by crossing the Rio Grande River. Previously, on September 26, 1997, Alfaro was removed from the United States. Because he had not obtained permission to re-enter the country after being deported in 1997, he was indicted for being illegally present in the United States following deportation. He pled guilty to this charge.

Prior to sentencing, the district court instructed the probation officer to prepare a presentence report ("PSR") for Alfaro. In this PSR, the probation officer, relying on the 2002 version of the Sentencing Guidelines, stated that Alfaro's base offense level was eight. He then wrote that Alfaro was convicted in 1994 in Fairfax, Virginia of shooting into an occupied dwelling, in violation of VA.CODE ANN. § 18.202-79 (1993). On the basis of this prior conviction, the probation officer recommended that Alfaro receive a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for previously being convicted of a "crime of violence," which would result in an offense level of twenty-four. After including a three-level reduction for acceptance of responsibility, Alfaro's offense level, as set forth in the PSR, was twenty-one. The probation officer additionally determined that Alfaro had a criminal history category of III.

Alfaro was originally scheduled to be sentenced on January 9, 2004. At sentencing, Alfaro's counsel objected to the use of his 1994 Virginia conviction to enhance his sentence because Alfaro was seventeen at the time of the offense. The district court continued the sentencing proceeding to allow counsel to determine whether Alfaro had been certified as an adult with respect to his 1994 Virginia conviction. On February 5, 2004, the district court received proof that Alfaro had been certified as an adult with respect to this conviction. Alfaro acknowledged the validity of this finding, and he did not further challenge the sixteen-level enhancement. Accordingly, the district court accepted the probation officer's offense score, which resulted in a guidelines imprisonment range of forty-six to fifty-seven months. The district court sentenced Alfaro to a fifty-month term of imprisonment, a three-year term of supervised release, and a $100 special assessment. Alfaro now appeals his sentence.

II. ANALYSIS

A. The Sixteen-Level Enhancement

Alfaro argues that the district court committed plain error by applying a sixteen-level enhancement for previously committing a "crime of violence" under U.S.S.G. § 2L1.2 on the basis of his 1994 Virginia conviction for shooting at an occupied dwelling. Specifically, Alfaro argues that shooting into an occupied dwelling is not a "crime of violence" under U.S.S.G. § 2L1.2 because: (1) it is not a conviction for one of the qualifying offenses enumerated in § 2L1.2; and (2) the statute of conviction, VA.CODE ANN. § 18.2-279, does not have as an element the use, attempted use, or threatened use of physical force against the person of another.

Alfaro additionally states that his substantial rights were violated because, at most, he should have been subject only to an eight-level enhancement under § 2L1.2(b)(1)(C) for being convicted of an "aggravated felony." This would have produced a Guidelines sentencing range of at most fifteen to twenty-one months, far less than the fifty months he received.

Because Alfaro did not object below to the district court's imposition of the sixteen-level increase, this court reviews the district court's imposition of the enhancement for plain error.¹ See United States v. Villegas, 404 F.3d 355, 358, 2005 WL 627963, at *2 (5th Cir.2005); United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770. When these three conditions are all met, this court may exercise its discretion to correct the error only if the error "seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)).

In reviewing Alfaro's claim of plain error, we begin by determining whether the district court committed an error and whether that error was plain. Villegas, 404 F.3d at 358-62, 2005 WL 627963, at *2-5. In resolving his claim that the district court erred by misapplying § 2L1.2(b)(1)(A)(ii), we review the district court's interpretation and application of the Guidelines de novo. Id. Under U.S.S.G. § 2Ll.2(b)(1)(A)(ii), an alien convicted of unlawfully re-entering, or being unlawfully present in, the United States after previously being deported, faces a sixteen-level enhancement under the Sentencing Guidelines if, prior to his deportation, he had "a conviction for a felony that is . . . a crime of violence . . . . " The term "crime of violence" includes "murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." U.S.S.G. § 2L1.2, Application Note 1(B)(11). Additionally, it includes 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." Id.

Under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), a district court looks to the elements of'a prior offense, rather than to the facts underlying the conviction, when classifying a prior offense for sentence enhancement purposes. See also United States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.:2002). In United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir.2004), this court addressed exactly what a district court should consider when determining if a "crime of violence" under § 2L1.2 was committed, writing:

Although the actual conduct described in the indictments could be construed to involve the use of physical force against the person of another, that is irrelevant. . . . The inquiry [when determining if a "crime of violence" was committed] looks to the elements of the crime, not to the defendant's actual conduct in committinr it. This rule springs directly from the language of the "crime of violence" definition itself, which states that a "crime of violence" is an offense that "has as an element" the use of force. The elements of an offense of course come from the statute of conviction, not from the particular manner and means that attend a given violation of the statute. Prior decisions of this court have accordingly held that the statute of conviction, not the defendant's underlying conduct, is the proper focus.

383 F.3d at 257 (internal citations omitted). Similarly, in United States v. Vargas-Duran, 356 F.3d 598, 605-06 (5th Cir.2004), this court held that an inquiry of this sort is limited to looking at the elements of the statute of conviction, writing that "[if] any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element-implicit or explicit-of the crime."

In the present case, the statute of conviction, VA.CODE ANN. § 18.2-279, provides:

If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peiil, the person so offending shall be guilty of a Class 4 felony. In the event of the death of any person, resulting from such malicious shooting or throwing, the person so offending shall be guilty of murder, the degree to be determined by the jury or the court trying the case without a jury.

If any such act be done unlawfully but not maliciously, the person so offending shall be guilty of a Class 6 felony; and,...