U.S. v. Carrasco-Salazar, No. 06-2311.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Paul Kelly, Jr.
• Citation: 494 F.3d 1270
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto CARRASCO-SALAZAR, Defendant-Appellant.
• Docket Number: No. 06-2311.
• Decision Date: 30 July 2007

494 F.3d 1270 UNITED STATES of America, Plaintiff-Appellee,
v.
Roberto CARRASCO-SALAZAR, Defendant-Appellant. No. 06-2311. United States Court of Appeals, Tenth Circuit. July 30, 2007.

[494 F.3d 1271]

Terri J. Abernathy, Assistant United States Attorney, (and Larry Gomez, Acting United States Attorney, on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee.

Leon Schydlower, El Paso, Texas, for Defendant-Appellant.

Before TACHA, Chief Circuit Judge, BALDOCK, and KELLY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Roberto Carrasco-Salazar pled guilty to unlawful reentry by an alien previously convicted of an aggravated felony, see 8 U.S.C. §§ 1326(a) & (b)(2), and appeals his sentence of 70 months' imprisonment. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

Background

Mr. Carrasco is a Mexican citizen. In 1996, he pled guilty to one count of criminal sexual conduct in the fourth degree in Minnesota, see Minn.Stat. § 609.345(1)(c), and he was deported on January 16, 2002. On October 24, 2003, the border patrol arrested Mr. Carrasco in Sunland Park, New Mexico. After waiving indictment, he entered a plea of guilty on December 30, 2003 to an information charging him with unlawful reentry.

The Probation Office prepared a Presentence Investigation Report ("PSR") in advance of sentencing. The PSR calculated Mr. Carrasco's base offense level at 8, but it recommended a 16-level enhancement based upon his prior conviction for fourth-degree criminal sexual conduct. See U.S.S.G. § 2L1.2(b)(1)(A). After deducting 3 points for acceptance of responsibility, see id. § 3E1.1, the PSR determined that Mr. Carrasco's total offense level was 21. Mr. Carrasco's criminal history score was calculated to be 13, leading to a criminal history category of VI. This resulted in a Guideline sentencing range of 77 to 96 months' imprisonment.

On April 22, 2004, Mr. Carrasco filed objections to the PSR, contesting both the 16-level enhancement and the calculation of his criminal history score. R. Doc. 14, at 1-2. The objection relevant to this appeal challenged the PSR's use of Mr. Carrasco's Minnesota conviction to enhance his offense level, arguing that fourth-degree criminal sexual conduct is not categorically a crime of violence because it includes acts which would not constitute crimes of violence. See Minn. Stat. § 609.345; Aplt. Br. at 7-10.

In response, the Probation Office submitted an addendum to the PSR, which included a copy of the Minnesota complaint charging Mr. Carrasco with fourth degree criminal sexual conduct in violation of Minn.Stat. § 609.345(1)(c). This particular subsection of § 609.345 only applies when "the actor uses force or coercion to accomplish the sexual contact." Id. at (1)(c). The complaint alleged that Mr. Carrasco "willfully, wrongfully, unlawfully, intentionally and feloniously engaged in sexual contact with another person and used force or coercion to accomplish the sexual contact." Aplee. Sealed App. at 5. The government also submitted a printout of Minnesota court records indicating that Mr. Carrasco specifically pled guilty to violating § 609.345(1)(c). See R. Doc. 17, Ex. 3.

In July 2004, Mr. Carrasco filed supplemental objections to the PSR claiming that a 16-level enhancement based on his guilty

494 F.3d 1272

plea, rather than facts admitted or found by a jury, violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court continued the sentencing hearing pending the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

On July 22, 2005, Mr. Carrasco appeared before the district court for sentencing. The court first sustained Mr. Carrasco's objection to two of the criminal history points assessed against him. This resulted in a total offense level of 21 and a criminal history category of V, and Mr. Carrasco's new Guideline range was 70 to 87 months' imprisonment. Then,...