U.S. v. Fernandez-Cusco

• Citation: 447 F.3d 382
• Decision Date: 20 April 2006
• Docket Number: No. 05-40289.,05-40289.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan FERNANDEZ-CUSCO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

447 F.3d 382

UNITED STATES of America, Plaintiff-Appellee, v. Juan FERNANDEZ-CUSCO, Defendant-Appellant.

No. 05-40289.

United States Court of Appeals, Fifth Circuit.

April 20, 2006.

Renata Ann Gowie, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def., Houston, TX, for Fernandez-Cusco.

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

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Having pleaded guilty to illegal re-entry, in violation of 8 U.S.C. § 1326(a) & (b), Juan Fernandez-Cusco contests: (1) the constitutionality of 8 U.S.C. § 1326(b)(1) & (2) (prohibiting aliens convicted of certain criminal behavior from reentering the United States); (2) his previous state-felony conviction for third-degree criminal sexual conduct being classified as the requisite "crime of violence" for imposing a 16-level sentencing enhancement under Sentencing Guideline § 2L1.2(b)(1)(A)(ii); and (3) being required to cooperate in the collection of his DNA as a condition of supervised relief. AFFIRMED IN PART and DISMISSED IN PART.

I.

Fernandez-Cusco, a citizen of Ecuador, pleaded guilty in 1995 in Minnesota to criminal sexual conduct in the third degree, a felony. In July 2004, he was deported and notified he could not return to the United States without permission. That October, federal agents found him in Texas, after he reentered the United States illegally. That November, he pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a) & (b).

The 2004 version of the now-advisory Sentencing Guidelines was in effect when Fernandez-Cusco was sentenced in February 2005 for his illegal-reentry conviction. His base offense level of 8 was increased by 16 levels, pursuant to Sentencing Guideline § 2L1.2(b)(1)(A)(ii), the district court adopting the recommendation in the Presentence Investigation Report (PSR) that Fernandez-Cusco's previous Minnesota sexual-conduct crime was a "crime of violence". After a three-level acceptance-of-responsibility reduction, his total offense level was 21, with an advisory guideline range of 46 to 57 months. Fernandez-Cusco was sentenced to 46 months in prison, followed by a two-year supervised release.

II.

As described, Fernandez-Cusco raises three issues. The principle issue concerns the crime-of-violence ruling. He concedes the other two issues are foreclosed by our precedent.

A.

Concerning his conviction and sentence, Fernandez-Cusco contends the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) are unconstitutional. This issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Fernandez-Cusco maintains Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), our court has repeatedly rejected this contention on the basis that Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fernandez-Cusco concedes this claim is foreclosed; he raises it only to preserve it for further review.

B.

Fernandez-Cusco was sentenced a few weeks after the Sentencing Guidelines were held in January 2005 to be only advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nevertheless, post-Booker, district courts must still consider, and properly apply, the Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005).

Fernandez-Cusco claims his prior guilty-plea conviction for criminal sexual conduct is not a crime of violence under the 2004 Guideline § 2L1.2(b)(1)(A)(ii). He did not, however, object in district court to this enhancement.

1.

Before engaging in the resulting plain-error review, we note that, although the Government does not claim Fernandez-Cusco waived this contention, review of the PSR and Fernandez-Cusco's objections to it suggests he may have done so. He objected to his PSR by requesting "a downward departure for criminal history over-representation". Specifically, he "concede[d] the serious nature of [the prior Minnesota sex] offense, [but claimed] such seriousness is already considered by the 16-level enhancement". In short, he indicated the enhancement was proper.

Of course, a defendant does not waive plain-error review simply by "fail[ing] to object to the characterization of his prior offense as a crime of violence". United States v. Alfaro, 408 F.3d 204, 207 n. 1 (5th Cir.) (internal quotation omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 271, 163 L.Ed.2d 243 (2005). Fernandez-Cusco, however, did more than fail to object to the crime-of-violence enhancement; he affirmatively recognized it was being applied and indicated it was proper. That acknowledgment arguably constitutes invited error. Nevertheless, out of an abundance of caution, we will review for plain error.

2.

Under plain-error review, Fernandez-Cusco must show a "clear" or "obvious" error affected his substantial rights. E.g., United States v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543 U.S. 1029, 125 S.Ct. 675, 160 L.Ed.2d 510 (2004). Even then, we retain discretion to correct plain error. Generally, we will do so only if "it affects the fairness, integrity, or public reputation of judicial proceedings". Id. For the following reasons, there was no plain error.

A person convicted of illegal reentry or of being found unlawfully present in the United States, after deportation, is subject to a 16-level enhancement if, prior to deportation, he had a felony conviction for a "crime of violence". U.S.S.G. § 2L1.2(b)(1)(A)(ii). A crime of violence is "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor ... 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". Id. § 2L1.2 cmt. n. 1(B)(iii)(2004) (emphasis added).

The Government contends Fernandez-Cusco's guilty-plea conviction in Minnesota constitutes a forcible sex offense, one of the enumerated crimes for the Guideline section at issue. Because "the enhancement provision does not specifically define [forcible sex offense], we must define it according to its `generic contemporary meaning'" to determine whether the Minnesota offense constitutes a forcible sex offense. United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir.2004) (quoting Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)), cert. denied, 543 U.S. 1131, 125 S.Ct. 1103, 160 L.Ed.2d 1086 (2005); see also United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.) (considering "sexual abuse of a minor as ... understood in its ordinary, contemporary, [and] common meaning" (internal quotation marks omitted)), cert. denied, ___ U.S. ___, 126 S.Ct. 253, 163 L.Ed.2d 231 (2005). In 2004, interpreting a previous Guidelines version for the crime-of-violence section at issue (that, unlike the 2004 version used in this case, did not include statutory rape as an enumerated offense), our court held the term forcible sex offense "denotes a species of force that either approximates the concept of forcible compulsion or, at least, does not embrace some of the assented-to-but-not-consented-to conduct at issue" for statutory rape. United States v. Sarmiento-Funes, 374 F.3d 336, 344 (5th Cir.2004).

In the light of this generic, contemporary meaning, whether the prior offense was a forcible sex offense is determined by examining the Minnesota statute under which Fernandez-Cusco was convicted, not by evaluating his specific conduct in committing the offense. See Izaguirre-Flores, 405 F.3d at 275. If that statute allows for convictions in circumstances that do not constitute forcible sex offenses, the crime of violence enhancement would be improper, regardless of his conduct in committing the offense. See Alfaro, 408 F.3d at 209 (vacating sentence where underlying statute did not qualify as crime of violence and stating "this court has consistently held that[,] when a district court errs in concluding that a defendant was convicted of a crime of violence, the error is plain" (internal quotation marks omitted)); see also Sarmiento-Funes, 374 F.3d at 345 (refusing to uphold crime-of-violence enhancement when not all of the conduct criminalized by the underlying statute could be considered forcible sex offenses).

For this determination, the subdivision of the criminal sexual conduct statute under which Fernandez-Cusco was convicted may be considered. If he was convicted under a specific subdivision, the crime-of-violence enhancement would be valid if that subdivision can be violated only in a manner that constitutes a forcible sex offense, regardless of whether the entire statute requires such force. See Izaguirre-Flores, 405 F.3d at 273 n. 6 (stating that, because defendant was convicted under one subsection of applicable statute, the court did not need to consider whether conviction under another subsection would constitute sexual abuse of a minor, an enumerated crime of violence).

Third-degree criminal sexual conduct in Minnesota can be committed in ways that do not qualify as forcible sex offenses. For example, under subdivision 1(h), a person is guilty of such conduct if: (1) he or she is a psychotherapist; (2) the victim is a patient; and (3) the offense occurred during a therapy session or at any time a therapist-patient relationship existed. MINN.STAT. § 609.344, subd. 1(h) (1995). Again, the enhancement is valid only if the specific ...