U.S. v. Medina-Anicacio

• Decision Date: 24 March 2003
• Docket Number: No. 01-41171.,01-41171.
• Citation: 325 F.3d 638
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Santiago MEDINA-ANICACIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

325 F.3d 638

UNITED STATES of America, Plaintiff-Appellee, v. Santiago MEDINA-ANICACIO, Defendant-Appellant.

No. 01-41171.

United States Court of Appeals, Fifth Circuit.

March 24, 2003.

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Kathlyn Giannaula Snyder, James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., H. Michael Sokolow, Houston, TX, for Defendant-Appellant.

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

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS,^* District Judge.

CLEMENT, Circuit Judge:

Medina-Anicacio appeals his enhanced sentence pursuant to his violation of 8 U.S.C. § 1326(a)-(b)(2), illegal reentry subsequent to an aggravated felony conviction, arguing that: (1) possession of a deadly weapon is not an aggravated felony under the federal sentencing guidelines; and (2) his sentence should have been reduced for acceptance of responsibility. We affirm in part, and reverse and remand in part.

I. FACTS AND PROCEEDINGS

On April 4, 2001, United States Border Patrol agents apprehended Santiago Medina-Anicacio ("Medina") as he was walking west of the Border Patrol checkpoint near Freer, Texas. Medina admitted to agents that he was a Mexican citizen, that he did not have documents allowing him to enter and remain in the United States, and that he had entered the United States by crossing International Bridge No. 2 in Laredo, Texas, with a group of tourists. An investigation revealed that Medina had previously been ordered removed from the United States on February 3, 1998, following the revocation of his probation and the imposition of a 16-month sentence in the Superior Court of California, Los Angeles County, for the felony offense of possession of a deadly weapon. The weapon was an adjustable dagger that was found during a pat down of Medina's person.

The government charged Medina by a three-count indictment with, inter alia, being illegally present in the United States after deportation subsequent to an aggravated felony conviction. Medina entered a plea of guilty. After his guilty plea, the U.S. Probation Office prepared a pre-sentence investigation report ("PSR"), which calculated Medina's base offense level at eight. Because of Medina's California felony conviction for possession of a deadly weapon, which the Probation Office determined to be an aggravated felony, the Probation Office added sixteen points to his offense level pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2(b)(1)(A). The Probation Office declined to adjust Medina's offense level downward under U.S.S.G. § 3E1.1, because Medina had not accepted responsibility for the offense to the probation officer.

Medina filed a written objection to the PSR on the ground that possession of a deadly weapon was not an aggravated felony. Medina also objected on the ground that the court should sentence him under the proposed version of the sentencing guidelines that was to go into effect on November 1, 2001. He argued that under the 2001 version, only an eight-level increase was appropriate for his prior conviction. Medina only raised the "proposed guidelines" argument at the sentencing hearing. The district court overruled the objection and sentenced him to 100 months in prison and a three-year term of supervised release. Medina filed a timely notice of appeal, and argues that: (1) possession of a deadly weapon is not an aggravated felony under the federal sentencing guidelines; and (2) his sentence should have been reduced for acceptance of responsibility.

II. DISCUSSION

A. Preservation of the Aggravated Felony Issue for Appeal

As an initial matter, we must determine whether Medina preserved for appeal his claim that the district court erred in finding that his prior conviction for the California concealed dagger offense is a conviction for a "crime of violence" qualifying as an "aggravated felony" under § 2L1.2 of the 2000 sentencing guidelines. Medina's written objection to the PSR stated:

The defendant objects to paragraph 12 of the Pre-Sentence Report (PSR). The defendant believes the offenses [sic] listed in Paragraphs 12 [the concealed dagger offense] is not an "aggravated felony" and therefore he should not be given a sixteen level upward adjustment pursuant to Section 2L1.2(b)(1)(A) of the proposed amendment to the Sentencing Guidelines. The proposed amendment to Part L, Offenses Involving Immigration, Naturalization and Passports employs a graduated scale increasing a defendant's base offense level depending on the classification of the offense. In the instant case, paragraph 25 Possession of a Deadly Weapon, the offense used to increase the defendant's base offense level 16 points, [the concealed dagger offense,] would under the proposed amendments only be a 8 level increase in the base offense level.

(emphasis added). At sentencing, Medina's counsel renewed his objections:

Your Honor, I filed some objections. It's the same as the previous case, to see if the Court would go by the proposed guidelines. I think it's scored differently under the proposed guidelines. And also we ask the Court — or we believe that this is once again an over-representation of his criminal history.

The court overruled Medina's objections, but did not specifically address whether Medina's concealed dagger offense qualifies as an "aggravated felony" under § 2L1.2 of the 2000 sentencing guidelines.¹

The Government now argues that Medina effectively waived his "aggravated felony" claim of error by arguing in the district court that he should receive only an eight-level increase² under the proposed amendments to the sentencing guidelines (that were to go into effect on November 1, 2001), rather than the 2000 edition of the sentencing guidelines, which applied at the time of Medina's sentencing.

Preliminarily, we must decide whether Medina's counsel stated his objection to the PSR clearly enough to allow the district court an opportunity to rule on his objection that the California concealed dagger offense is not an "aggravated felony". Medina's written objection to the PSR claimed that Medina's concealed dagger offense was "not an aggravated felony," and Medina's counsel renewed, although clumsily, this claim of error at sentencing by stating that "we believe this [sentence] is once again an over-representation of [Medina's] criminal history." Even if Medina's counsel had not renewed the objection at the sentencing hearing, once a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal. Bender v. Brumley, 1 F.3d 271, 277 (5th Cir. 1993). Consequently, we conclude that Medina's objection was clear enough to provide the district court with opportunity to rule on it.

The Government contends that Medina conceded that his prior felony conviction constituted an aggravated felony by arguing that the proposed 2001 version of the sentencing guidelines should have applied. Although Medina contended that possession of a deadly weapon was not an aggravated felony, he requested that the eight-level increase from the 2001 version of the sentencing guidelines apply to his sentence, which is the upward enhancement applied for aggravated felonies. U.S.S.G. § 2L1.2(b)(1)(A). The Government contends that Medina's insistence that the eight-level 2001 sentencing guideline apply was a concession that the California weapon possession charge was, in fact, an aggravated felony.³ Thus, the Government maintains that this Court should review the question of whether the weapon possession charge is an aggravated felony under plain error review because the district court never had the opportunity to rule on Medina's claim.

Generally, this Court reviews the district court's application of the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.2001); United States v. Salter, 241 F.3d 392, 394 (5th Cir.2001). Arguments raised for the first time on appeal are subject to the plain error standard. Salter, 241 F.3d at 394. When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only. See United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.1994).

Here, Medina's written objection to the PSR clearly stated his position that his concealed dagger offense was "not an `aggravated felony'" under the proposed 2001 version of the sentencing guidelines. Because the 2000 and 2001 versions of the guidelines both incorporate § 1101(a)(43)'s definition of "aggravated felony", Medina has raised the issue of whether his concealed dagger offense is an "aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43). Moreover, the addendum to the PSR specifically addressed Medina's objection, stating that "Possession of a Deadly Weapon is an aggravated felony by definition," and that "Possession of a Deadly Weapon meets the definition of `crime of violence' since possessing the weapon creates a substantial risk of physical force against the person or property of another." The district court, therefore, considered whether Medina's concealed dagger offense constituted an "aggravated felony" under 8 U.S.C. § 1101(a)(43). Medina's request for an eight-level increase is more properly construed as an argument in the alternative: if the court were to find that the prior California conviction was an aggravated felony, then Medina argued that it should only result in an eight-level increase under the 2001 sentencing guidelines instead of a 16-level increase under the 2000 sentencing guidelines. Accordingly, we review the district court's resolution of the "aggravated felony" issue de novo.

B. Possession of a Deadly Weapon as an Aggravated Felony

On appeal, Medina contends that the district court erred in...