U.S. v. Romero-Hernandez

• Decision Date: 16 October 2007
• Docket Number: No. 05-2154.,05-2154.
• Citation: 505 F.3d 1082
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Felipe ROMERO-HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

505 F.3d 1082

UNITED STATES of America, Plaintiff-Appellee, v. Felipe ROMERO-HERNANDEZ, Defendant-Appellant.

No. 05-2154.

United States Court of Appeals, Tenth Circuit.

October 16, 2007.

Submitted on the briefs:^*

Jerry A. Walz and Alfred D. Creecy, Walz and Associates, Cedar Crest, New Mexico, for the Defendant-Appellant.

David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United States Attorney, Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, for the Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, BRISCOE, and GORSUCH, Circuit Judges.

TACHA, Chief Circuit Judge.

Defendant-Appellant Felipe Romero-Hernandez, a citizen of Mexico, pleaded guilty to illegal reentry following removal for commission of an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). At sentencing, the District Court applied a sixteen-level upward adjustment to Mr. Romero-Hernandez's sentence under § 2L1.2(b)(1)(A)(ii) of the U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines") after concluding that he had previously been deported following a felony conviction for a crime of violence. On appeal, Mr. Romero-Hernandez argues that the District Court erroneously applied the adjustment because his prior state conviction is not a crime of violence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and AFFIRM.

I. BACKGROUND

On March 10, 2004, in Denver County Court, Mr. Romero-Hernandez pleaded guilty to and was convicted of misdemeanor unlawful sexual contact in violation of Colorado law, Colo.Rev.Stat. § 18-3-404(1). Mr. Romero-Hernandez was sentenced to 720 days' imprisonment with 60 days' credit for time served and 660 days suspended and was thereafter removed from the United States. On August 14, 2004, Mr. Romero-Hernandez was apprehended in southern New Mexico and was subsequently charged with illegal reentry following removal for commission of an aggravated felony, a violation of 8 U.S.C. § 1326(a) and (b)(2).

Mr. Romero-Hernandez pleaded guilty to the federal charge. The presentence report ("PSR") calculated his base offense level as eight pursuant to U.S.S.G. § 2L1.2(a). In addition, the PSR recommended a sixteen-level upward adjustment under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides for an increase to the base offense level when the defendant has a prior felony conviction for a crime of violence. According to the PSR, Mr. Romero-Hernandez's conviction is a felony for federal sentencing purposes (despite its characterization as a misdemeanor under Colorado law) because it is punishable by a term of imprisonment exceeding one year, see U.S.S.G. § 2L1.2 cmt. n. 2, and is a "crime of violence" because Mr. Romero-Hernandez had non-consensual sexual contact with a minor and "sexual abuse of a minor" is an enumerated crime of violence under the Guidelines, see U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).¹ The PSR also recommended a three-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Applying these adjustments, the PSR reported an adjusted offense level of 21. With a criminal history category of III, the recommended Guidelines sentence was 46 to 57 months' imprisonment. See U.S.S.G. ch. 5 pt. A.

Mr. Romero-Hernandez objected to the PSR, arguing that his prior state conviction was neither a felony nor a crime of violence. The District Court rejected these objections, concluding that the offense was a felony and that a "plain reading" of the Colorado statute reveals that a violation of the statute constitutes a "forcible sex offense," an offense specifically enumerated as a "crime of violence" under the Guidelines, see U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). The District Court sentenced Mr. Romero-Hernandez to 46 months' imprisonment to be followed by two years' supervised release. On appeal, Mr. Romero-Hernandez does not contest that the state conviction is a felony offense for purposes of the Guidelines. He maintains, however, that the offense of unlawful sexual contact is not a "crime of violence."

II. DISCUSSION

This Court reviews de novo a district court's determination that a prior offense qualifies as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v. Torres-Ruiz, 387 F.3d 1179, 1180-81 (10th Cir.2004). "In interpreting a guideline, we look at the language in the guideline itself, as well as the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission." Id. at 1181 (quotation omitted).

The 2004 Guidelines, under which the District Court sentenced Mr. Romero-Hernandez, provide a sixteen-level upward adjustment to the base offense level if the "defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to § 2L1.2 define "crime of violence" as:

any of the following: murder, manslaughter, kidnapping, 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) (emphasis added).

When a defendant contests whether a prior conviction is a crime of violence, the sentencing court is generally required to follow the "categorical approach" as adopted in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir.2005). The categorical approach requires the sentencing court to look "only to the statutory definitions of the prior offenses and not to the particular facts underlying those convictions." Id. (quotation omitted). But when an examination of the statute reveals that the statute "reaches a broad range of conduct, some of which merits an enhancement and some of which does not, courts resolve the resulting ambiguity by consulting reliable judicial records." United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005). At this stage, the analysis is referred to as the "modified categorical approach." See Gonzales v. Duenas-Alvarez, ___ U.S. ___, 127 S.Ct. 815, 819, 166 L.Ed.2d 683 (2007); Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1211 (10th Cir.2007). In applying the modified categorical approach, the court is limited to examining "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The court may also rely on any admissions the defendant has made regarding the facts of the prior conviction. Perez-Vargas, 414 F.3d at 1285. Ultimately, the purpose of this analysis is to avoid "collateral trials." Shepard, 544 U.S. at 23, 125 S.Ct. 1254.

Following the categorical approach here, we look first to the language of the statute to determine whether Mr. Romero-Hernandez was convicted of a crime of violence. Because we conclude that the particular section of the Colorado statute at issue prohibits conduct that is categorically a crime of violence under § 2L1.2, our analysis ends with the language of the statute and we do not proceed to apply the modified categorical approach.

Mr. Romero-Hernandez was convicted under Colo.Rev.Stat. § 18-3-404(1),² which provides:

Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if:

(a) The actor knows that the victim does not consent; or

(b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or

(c) The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented; or

(d) The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission; or

[(e) Repealed by Laws 1990, H.B.90-1133, § 25, eff. July 1, 1990.]

(f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority, unless incident to a lawful search, to coerce the victim to submit; or

(g) The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices.

The District Court concluded that a conviction under the Colorado statute is categorically a "forcible sex offense" and thus a crime of violence. The statute prohibits nonconsensual sexual contact that is not necessarily achieved by physical force.³ We must therefore determine whether nonconsensual sexual contact constitutes a forcible sex offense and therefore a crime of violence. As we explain below, we conclude that it does.

The Guidelines do not define the phrase "forcible sex offenses." Mr. Romero-Hernandez argues that to qualify as a forcible sex offense the offense must involve the use of physical force apart from the force inherent in the sexual contact itself, while the Government contends that a sex offense can be "forcible" even though no physical force is involved. According to the Government, a sex offense is "forcible" if it is nonconsensual, including those situations in which the victim is legally or medically unable to consent. This is an issue of first impression for this Circuit, and other circuits appear to be split on the issue. Compare United States v. Beltran-Munguia, 489 F.3d 1042, 1051 (9th Cir. 2007) ...