U.S. v. Pimentel-Flores

• Decision Date: 11 August 2003
• Docket Number: No. 02-10353.,02-10353.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gilberto PIMENTEL-FLORES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

339 F.3d 959

UNITED STATES of America, Plaintiff-Appellee, v. Gilberto PIMENTEL-FLORES, Defendant-Appellant.

No. 02-10353.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2003.

Filed August 11, 2003.

Deirdre M. Mokos and Brian I. Rademacher, Assistant Federal Public Defenders, Tucson, AZ, for the defendant-appellant.

Maria S. Davila, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; John M. Roll, District Judge, Presiding. D.C. No. CR-02-087-TUC-JMR.

Before: D.W. NELSON and W. FLETCHER, Circuit Judges, and ALSUP,¹ District Judge.

ALSUP, District Judge.

This appeal requires an interpretation of the 2001 amendment to United States Sentencing Guideline § 2L1.2. The question is whether the term "crime of violence" as defined in the new guideline is limited to "aggravated felonies" within the meaning of 8 U.S.C. § 1101(a)(43). Based on the plain meaning of the guideline and its application note, we hold that a "crime of violence" under the new guideline need not be an "aggravated felony" within the meaning of the statute to qualify for a 16-level enhancement. Notwithstanding, the proceedings below were flawed for relying solely on facts in the presentence investigation report rather than following the procedure under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), for determining whether defendant's prior offense qualified as a "crime of violence." The government should have supplied the necessary information before sentencing. Accordingly, remand for resentencing on an open record is required.

FACTS AND PROCEDURAL BACKGROUND

On February 12, 2002, Pimentel-Flores pled guilty, pursuant to a written plea agreement, to an indictment charging a violation of 8 U.S.C. § 1326(a) for reentry after removal, with a sentencing enhancement under 8 U.S.C. § 1326(b)(1) for a prior "felony." The presentence investigation report ("PSR") indicated that Pimentel-Flores had a prior conviction for "assault in violation of court order, a felony, in Franklin County Superior Court, Pasco Washington, Case No. 98-1-50371-1." The PSR detailed the facts surrounding the conviction and that Pimentel-Flores received a thirty-day jail sentence, twelve months probation, and a $1,000 fine. The PSR, however, did not identify the statute under which defendant had been convicted. Additionally, the government failed to provide any other judicially-noticeable documents indicating the statute of conviction.

The PSR determined that Pimentel-Flores's conviction for assault in violation of a court order qualified as a felony "crime of violence" under the new guideline effective November 2001. Accordingly, it assessed a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A). The PSR further counseled against the plea agreement because it called only for a four-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(D) or (E).

In his objections to the PSR, Pimentel-Flores contended that his prior offense could not qualify for a 16-level enhancement as a "crime of violence." Under the new guideline, he contended, that term ought to be no broader than the preexisting (and continuing) statutory definition of a "crime of violence," which required an imposed term of imprisonment of at least one year. 8 U.S.C. § 1101(a)(43)(F). Additionally, defendant urged the district court to accept the written plea agreement.

At the sentencing hearing on June 19, 2002, the district court rejected the plea agreement and accepted the PSR's enhancement calculation. The district court then sentenced Pimentel-Flores to 41 months in prison. Pimentel-Flores declined the express opportunity to withdraw his guilty plea, and appealed.

ANALYSIS

I.

The district court did not err in imposing a 16-level "crime of violence" enhancement based on Pimentel-Flores's prior offense for which he had received a sentence of less than one year. The sentence the district court imposed was less than the 8 U.S.C. § 1326(b) maximum for an illegal entry after prior removal with an enhancement for a prior "felony."² The issue, therefore, concerns the proper construction of the applicable guideline, which all in this case agree was U.S.S.G. § 2L1.2, entitled "Unlawfully Entering or Remaining in the United States," as amended effective November 1, 2001. To appreciate the context of the guideline issue, it is best to begin with the statutory regime.

Section 1326 establishes the penalty provisions for the offense of illegal reentry. Section 1326(b) establishes the statutory maximums where removal was subsequent to a conviction, and reads, in relevant part:

(b) Notwithstanding subsection (a), in the case of any alien described in such subsection —

(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;

8 U.S.C. § 1326(b) (emphasis added). In turn, the term "aggravated felony" is defined in 8 U.S.C. § 1101(a)(43) to include a list of offenses, one of which is a "crime of violence." Specifically, an aggravated felony includes:

a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is]³ at least one year;

8 U.S.C. § 1101(a)(43)(F). The phrase "for which the term of imprisonment [is] one year or more" refers to the actual sentence imposed in the earlier felony case, not the maximum available sentence. Alberto-Gonzalez v. INS, 215 F.3d 906, 909-910 (9th Cir.2000).

A "crime of violence" is defined in 18 U.S.C. § 16 as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Turning to the sentencing guideline, the earlier guideline before the 2001 amendment was straightforward: all "aggravated felonies" received a 16-level enhancement, as follows:

(1) If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase as follows (if more than one applies, use the greater):

(A) If the conviction was for an aggravated felony, increase by 16 levels.

(B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels.

U.S.S.G. § 2L1.2(b) (2000). Thus, all "aggravated felonies" as defined in 8 U.S.C. § 1101(a)(43) were subject to a 16-level enhancement under the old guideline. All other prior "felonies" received a four-level enhancement.

This brings us to the new guideline immediately at issue. Sentencing Guideline § 2L1.2 now reads in pertinent part:

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after —

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense committed for profit, increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;

(C) a conviction for an aggravated felony, increase by 8 levels;

(D) a conviction for any other felony, increase by 4 levels; or

(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.

The application note to 2L1.2 defines the terms in the new guideline. The new guideline has its own definition of "crime of violence." It notes that for purposes of subsection (b)(1),

"Crime of violence" —

(I) means an 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; and

(II) includes murder, manslaughter, kidnapping, 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 cmt. n. 1(B)(ii) (2001). Also for purposes of (b)(1), a "felony" is defined as:

any federal, state, or local offense punishable by imprisonment for a term exceeding one year.

U.S.S.G. § 2L1.2 cmt. n. 1(B)(iv) (2001) (emphasis added). Another application note provision states that:

For purposes of subsection (b)(1)(C), "aggravated felony" has the meaning given that term in 8 U.S.C. § 1101(a)(43), without regard to the date of conviction of the aggravated felony.

U.S.S.G. § 2L1.2 cmt. n. 2 (2001).

At the heart of this case, the parties dispute whether a "crime of violence" under the new guideline must be limited to "aggravated felonies" within the meaning of the statute. This is an issue of first impression. We hold that under United States Sentencing Guideline § 2L1.2, amended as effective November 1, 2001, a "crime of violence" needed only to be a "felony" as defined in the application notes — and not an "aggravated felony" as statutorily defined — to qualify for a 16-level enhancement.

The plain language of the guideline so...