U.S. v. Gamez

• Decision Date: 05 December 2008
• Docket Number: Docket No. 07-3660-cr(L).
• Citation: 577 F.3d 394
• Parties: UNITED STATES of America, Appellee, v. Santos GAMEZ, also known as Robert Evangelista, also known as Santos<SMALL><SUP>*</SUP></SMALL> Diaz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

577 F.3d 394

UNITED STATES of America, Appellee, v. Santos GAMEZ, also known as Robert Evangelista, also known as Santos^* Diaz, Defendant-Appellant.

Docket No. 07-3660-cr(L).

United States Court of Appeals, Second Circuit.

Argued: September 23, 2008.

Decided: December 5, 2008.

Opinion filed: August 20, 2009.

Edward S. Zas, Appeals Bureau, Federal Defenders of New York, Inc., New York, New York, for Defendant-Appellant Gamez.

Sharon E. Frase, Assistant United States Attorney, Of Counsel (Daniel A. Braun, Assistant United States Attorney, of Counsel, on the brief), for Michael J. Garcia, United States Attorney, Southern District of New York, New York, New York, for Appellee.

Before: WESLEY, HALL and GIBSON,^** Circuit Judges.

PER CURIAM:

Defendant-Appellant Santos Gamez ("Gamez") appeals from the district court judgment sentencing him to thirty months imprisonment, three years of supervised release and an assessment of $100, following his January 10, 2007 guilty plea to illegally reentering the United States after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a). Gamez was convicted in 2000 in state court of a violation of N.Y. Penal Law § 265.03 for possessing, without authorization, a loaded .32 caliber firearm and four live rounds of ammunition.¹ On appeal, Gamez argues that the district court erred when it increased his base offense level by sixteen levels, pursuant to the United States Sentencing Guidelines ("Guidelines") § 2L1.2(b)(1)(A)(ii), after determining that his prior New York State felony conviction was a "crime of violence." According to Gamez, a "crime of violence," as defined in the Commentary accompanying the Guidelines' § 2L1.2(b)(1), requires that the offense of which he was previously convicted have as an element the "use, attempted use, or threatened use of physical force" and that it cannot encompass an offense for which the element related to physical force requires only proof of intent to use it. We agree, and for the reasons that follow we vacate the sentence and remand for resentencing.

BACKGROUND

On January 20, 2007, Gamez, a Honduran citizen, pleaded guilty to unlawful reentry to the United States after deportation in violation of 8 U.S.C. § 1326(a). Gamez had been removed from the United States in August 2003 because in June 2000 he had pleaded guilty to criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03 which constituted an aggravated felony, a removable offense under the Immigration and Nationality Act. According to the Presentence Report ("PSR"), prepared by the Probation Office in connection with Gamez's illegal reentry conviction, which incorporated facts from the state presentence report prepared in connection with Gamez's 2000 guilty plea to the state offense, Gamez was arrested in 1998 after shooting one person in the face and one in the stomach. When he was arrested, Gamez was carrying a loaded .32 caliber firearm, which contained four live rounds of ammunition. He pleaded guilty to a violation of N.Y. Penal Law § 265.03 and was sentenced to forty-two months imprisonment. In August 2003, Gamez was transferred into the custody of the Immigration and Customs Enforcement and removed to Honduras. Gamez later returned to the United States and was charged with unlawfully reentering the United States, to which he pleaded guilty and was sentenced to thirty months imprisonment.

According to the PSR prepared for the unlawful reentry conviction at issue, under U.S.S.G. § 2L1.2(a), Gamez's base offense level was eight. Concluding that Gamez's prior criminal possession of a weapon conviction was for a "crime of violence," the PSR recommended a sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). It also recommended a three-level decrease for acceptance of responsibility based on Gamez's plea of guilty to the unlawful reentry charge. The resulting total offense level was twenty-one. The parties voiced no objections to the facts contained in the PSR, and the court determined it was undisputed that Gamez's total offense level was twenty-one.² While the PSR indicated that Gamez's criminal history was seven points, placing him in criminal history category IV, the district court determined that the PSR was ambiguous about whether Gamez's illegal reentry crime was committed less than two years after he was released from imprisonment on his 2000 conviction and computed Gamez's criminal history at six points, thus placing him in criminal history category III. With a total offense level of twenty-one and criminal history category III, Gamez's Guidelines range was forty-six to fifty-seven months imprisonment.

At the sentencing hearing, the district court adopted the facts from the PSR and concluded, after considering the Guidelines range and the factors under 18 U.S.C. § 3553(a), that a non-Guidelines sentence was appropriate. The district court found it significant that the defendant returned to the United States to work, rather than to obtain money through criminal activity, and the court credited Gamez's statement that he would not return illegally to the United States in the future. It imposed a thirty-month sentence of imprisonment, sixteen months below the low end of the applicable Guidelines range.

DISCUSSION

Standard of Review

We review de novo the district court's interpretation of the Guidelines regarding whether a particular crime is a "crime of violence." See United States v. Rubenstein, 403 F.3d 93, 99 (2d Cir.2005).

Gamez argues for the first time on appeal that the district court erred when it determined that his New York conviction for criminal possession of a weapon in the second degree was a "crime of violence" under the Guidelines, thus subjecting him to a sixteen-level increase of his base offense level. It is undisputed that Gamez did not raise this issue at sentencing, nor did he object to the court's calculation of the total offense level. We therefore review the district court's decision for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under the plain error standard, "[t]here must be an `error' that is `plain' and that `affect[s] substantial rights.'" Id. Moreover, courts of appeals should only exercise their discretion to correct the forfeited error pursuant to Fed.R.Crim.P. 52(b) when the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (citing United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (internal quotation marks omitted). This Court has stated that the plain error doctrine should not be applied stringently in the sentencing context, where the cost of correcting an unpreserved error is not as great as in the trial context. See United States v. Williams, 399 F.3d 450, 456-57 (2d Cir. 2005).³

Whether There Was an Error

"Deviation from a legal rule is `error' unless the rule has been waived." Olano, 507 U.S. at 732-33, 113 S.Ct. 1770. The Guidelines provide a base offense level of eight for unlawfully entering or remaining in the United States. See U.S.S.G. § 2L1.2(a). The specific offense characteristic provides that an increase by sixteen levels applies "[i]f the defendant previously was deported, or unlawfully remained in the United States, after—(A) a conviction for a felony that is ... (ii) a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary for § 2L1.2(b)(1) of the Guidelines provides the following definition for "crime of violence":

"Crime of violence" means any of the following: murder, manslaughter, kidnaping, 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) (2006) (emphasis added). Because criminal possession of a weapon is not an enumerated offense, to constitute a crime of violence under this definition, it must have "as an element the use, attempted use, or threatened use of physical force against the person of another." See id.

At the time of Gamez's guilty plea in 2000, N.Y. Penal Law § 265.03⁴ provided:

A person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another: (1) He possesses a machine-gun; or (2) He possesses a loaded firearm; or (3) He possesses a disguised gun. Criminal possession of a weapon in the second degree is a class C felony.

Therefore, to establish criminal possession of a weapon in the second degree, the prosecution must demonstrate, beyond a reasonable doubt, that a person: (1) possessed one of the described weapons; and (2) had intent to use such weapon unlawfully against another. See N.Y. Penal Law § 265.03 (McKinney 2000). As the New York Court of Appeals has instructed: "The essence of the illegal conduct defined in sections 265.01-265.05 of the Penal Law is the act of possessing a weapon unlawfully.... Once the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime." People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984) (internal citations omitted).

Because unlawful possession of a firearm under N.Y. Penal Law § 265.03 does not include as an element any unlawful use, attempted use or threatened use of physical force against another person, Gamez is correct that intent to use a gun unlawfully against another, an element of the offense for which he was convicted, "cannot be equated with the actual, attempted or threatened use of physical force, which all involve some affirmative conduct beyond the mere possession of a gun." See id. That Gamez actually...