U.S. v. Remoi

• Decision Date: 13 April 2005
• Docket Number: No. 03-2071.,03-2071.
• Citation: 404 F.3d 789
• Parties: UNITED STATES of America v. Okocci REMOI, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

404 F.3d 789

UNITED STATES of America v. Okocci REMOI, Appellant.

No. 03-2071.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) June 24, 2004.

Filed April 13, 2005.

Maureen Kearney Rowley, Chief Federal Defender, David L. McColgin, Supervising Appellate Attorney, Elizabeth T. Hey, Assistant Federal Defender, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney Senior Appellate Counsel, Paul G. Shapiro, Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee.

Before NYGAARD, McKEE, and CHERTOFF,^* Circuit Judges.

PER CURIAM.

Defendant Okocci Remoi, an alien, was convicted by a jury of knowingly preventing and hampering his deportation under a final order of removal. He was sentenced to sixty-four months imprisonment and two years of supervised release. Remoi appeals the conviction and sentence on the grounds (1) that the District Court erroneously instructed the jury regarding the burden of proof for Remoi's entrapment defense, and (2) that Remoi's previous conviction for criminal sexual contact with a helpless victim was incorrectly treated as a "crime of violence" for sentencing purposes. We have jurisdiction of the appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm the conviction. We vacate and remand to the District Court for resentencing under United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Briefly, the facts are as follows. Remoi was lawfully in the United States as a student at Rutgers University until he was expelled from school in 1990, based upon convictions for two counts of criminal sexual contact. The Immigration and Naturalization Service began deportation proceedings against Remoi in 1994. On September 21, 2001, the Board of Immigration Appeals issued a final order of removal against Remoi. He then filed a petition for habeas corpus (his third) challenging that order, but did not obtain a stay of removal.

By September 3, 2002, the INS had completed the arrangements necessary to return Remoi to his country of origin, Uganda. That day, two officers served Remoi with a warrant of deportation. Remoi was aware there was no stay in effect, but sought to telephone the district judge before whom his habeas petition was pending. That request was denied by the agents, who warned Remoi that if he failed to depart or sought to hinder his departure, he could be charged with a crime. Nevertheless, at the airport, Remoi physically resisted efforts to place him on the airplane. The agents decided to return him to custody.

A grand jury charged Remoi, who was subject to a final order of removal under 8 U.S.C. § 1227(a), with one count of knowingly preventing and hampering his departure pursuant to such an order, in violation of 8 U.S.C. § 1253(a)(1)(C). After a two day jury trial, Remoi was convicted. At sentencing, the District Court applied section 2L1.2 of the U.S. Sentencing Guidelines Manual, and assigned a base offense level of eight. Remoi's sentence was subject to increase, however, because of the nature of the crimes that formed the basis of his removal. The Court adjusted the offense level upward by sixteen levels based upon Remoi's two prior convictions for criminal sexual contact in New Jersey, which the Court determined were "crimes of violence" within the meaning of section 2L1.2. The District Judge reached that determination by considering the presentence report, which explained that Remoi's sexual contact involved unauthorized sexual touching of female students who were intoxicated or incapacitated. Remoi was sentenced to a term of imprisonment of sixty-four months.

I.

Remoi sought and obtained from the District Judge an instruction on the defense of entrapment. He argues now — although he did not object in District Court — that the instruction impermissibly shifted the burden of proof regarding this defense from the government to the defendant.

We need not determine whether the instruction taken as a whole was error, let alone plain error, because Remoi was simply not entitled to an instruction on the defense of entrapment. The factual predicate to the entrapment defense is some showing that the government induced the defendant to commit the crime. See United States v. Wright, 921 F.2d 42, 44 (3d Cir.1990). Here, there was no evidence of inducement.

Remoi's theory is that the agents induced him to commit the crime by warning him against resistance to removal, and by rejecting his unlawful request not to be removed. To put it charitably, this argument is fanciful. There was no evidence that the agents suggested to Remoi that if he resisted them he might be able to avoid removal. To the contrary, they advised him that resisting removal would be a violation of the law. The agents also did not prompt Remoi to commit a crime when they refused to delay his departure so that he could telephone a judge. Remoi's argument really boils down to the claim that by enforcing the law, the agents prompted him to break it. That reasoning refutes itself.

Since Remoi was not entitled to any entrapment instruction, any flaw in that instruction was not plain error. See United States v. Armocida, 515 F.2d 49, 55 (3d Cir.1975).

II.

Although Remoi is on stronger ground in arguing that the District Court erred by finding that his prior convictions involved crimes of violence, his argument nevertheless fails. At the time of his sentencing, section 2L1.2 of the U.S. Sentencing Guidelines Manual, entitled "Unlawfully Entering or Remaining in the United States," provided for an enhanced sentence when an alien unlawfully remained after being ordered removed for committing a "crime of violence." The Guidelines defined a "crime of violence" as any of the following: "(I) 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, app. n.1(B)(ii) (2002).

Sentencing under this provision, the District Court concluded that Remoi had been convicted of crimes of violence based on the facts underlying his previous convictions. Remoi argues — and the Government essentially concedes for purposes of argument — that the determination whether his prior convictions fit within the definition of crimes of violence must be undertaken on a categorical basis, looking only to the elements of the offense of conviction and not the underlying facts. That categorical approach is the one we have taken when analyzing how state statutes fit within the Sentencing Guidelines. United States v. Parson, 955 F.2d 858, 872-73 (3d Cir.1992); see also United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318-19 (5th Cir.2003). Thus, the District Court's determination can only be upheld if we can ascertain that the state crimes of which Remoi was convicted fall within the definition of crime of violence as a matter of its elements.

This analysis requires three steps. First, we must establish for which specific crimes Remoi was convicted. Second, we must interpret the necessary elements of those crimes. Third, we must determine whether those elements necessarily bring the state crime within one of the definitions of section 2L1.2, as we construe them. See, e.g., Francis v. Reno, 269 F.3d 162, 171-72 (3d Cir.2001).

A.

At the time of Remoi's convictions in 1990, New Jersey law criminalized several forms of sexual contact, including both the use of physical force or coercion and penetration with a helpless victim. Section 2C:14-2c of the New Jersey statute provided in pertinent part:

An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury; (2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated ...

N.J. Stat. Ann. § 2C:14-2c (1990).

The Government argues that we can narrow Remoi's convictions to subsection (2), dealing with a victim who was "physically helpless, mentally defective or mentally incapacitated." To accomplish that narrowing, we are directed to the charging instrument on which Remoi was convicted in 1990. That charging document explicitly alleges two separate violations of the criminal sexual contact statute based on contact with victims who were "physically helpless." (App. at 3).

Even under the categorical approach, we have been willing to consider charging documents in refining the state offense which we examine. United States v. Preston, 910 F.2d 81, 85 (3d Cir.1990); see also United States v. Spell, 44 F.3d 936, 939 (11th Cir.1995). In this instance, we can rely on the charging instrument not to establish the underlying facts, but simply to narrow the statutory provision to which our categorical analysis must apply. Accordingly, we proceed to analyze, applying de novo review, the elements of N.J.S.A. § 2C:14-2c(2) and to see those elements fit within the Guidelines' definition of "crime of violence."¹ See United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir.1996).

B.

New Jersey Statute section 2C:14-2c(1) requires the use of "physical force" to effect an "act of sexual penetration." But subsection c(2) — under which Remoi was convicted — requires instead that the victim of "penetration" have been "physically helpless" or "mentally defective or incapacitated." Thus, the sexual contact for which Remoi was...