U.S. v. Sanchez-Loredo, CRIM.B-03-192-001.

• Decision Date: 05 August 2003
• Docket Number: No. CRIM.B-03-192-001.,CRIM.B-03-192-001.
• Citation: 274 F.Supp.2d 873
• Parties: UNITED STATES of America, v. Salvador SANCHEZ-LOREDO.
• Court: U.S. District Court — Southern District of Texas

Page 873

274 F.Supp.2d 873

UNITED STATES of America, v. Salvador SANCHEZ-LOREDO.

No. CRIM.B-03-192-001.

United States District Court, S.D. Texas, Brownsville Division.

August 5, 2003.

Salvador Sanchez-Loredo, Brownsville, TX, Pro se.

Daniel Michael Marposon, Assistant U.S. Attorney, U.S. Attorney's Office,

Brownsville, TX, for United States.

MEMORANDUM OPINION

HANEN, District Judge.

The Defendant has pleaded guilty to violating 8 U.S.C. §§ 1326(a)-(b) ("Alien Unlawfully Found in the United States after Deportation"). Docket No. 10. The requisite prior conviction was for Burglary of a Structure in violation of FLA. STAT. § 810.02(4). At issue is how this prior conviction should be treated for purposes of sentencing under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2(b). The Government has suggested that this conviction constitutes a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and recommends that the Court assess the Defendant a 16-level sentencing enhancement on this basis. Docket Nos. 15, 20. The Defendant objects to this interpretation. Docket Nos. 13, 17. In summary, Defendant argues that Burglary of a Structure is neither a "crime of violence" under § 2L1.2(b)(1)(A)(ii) nor an "aggravated felony" under § 2L1.2(b)(1)(C). Docket No. 13. Instead, Defendant maintains that his prior conviction is one for a mere "felony" under § 2L1.2(b)(1)(D) and that a 4-level enhancement is therefore appropriate. Id. As decreed in open court during Defendant's sentencing hearing on July 23, 2003, the Court SUSTAINS the Defendant's objections and FINDS that the Defendant is subject to a mere 4-level enhancement as per U.S.S.G. § 2L1.2(b)(1)(D). The Court now memorializes said decision in this memorandum opinion so as to offer the parties a more detailed explanation of its ruling.

I. BACKGROUND

The plea agreement signed by the Defendant in relation to his prior Florida state burglary conviction unambiguously indicates that he pleaded guilty to "Burglary of a Structure," a felony of the third degree under Florida law. The original charging documents, an information accompanied by a "complaint affidavit," indicate that the Defendant was originally charged with three counts: (1) Burglary of a Dwelling (FLA.STAT. § 810.02), (2) Grand Theft (FLA.STAT. § 812.014), and (3) Battery (FLA.STAT. § 784.03). Additional charges of stalking and tampering with a witness were merged into the third count. All charges stemmed from one incident, in which the Defendant allegedly entered the home of his estranged wife and their three children without permission, struck his wife, and absconded with several items (viz. telephone, cell phone, car keys, and house keys). Rather than face trial on these charges, the Defendant pleaded guilty to the second and third counts, which are not at issue here, and to a lesser charge of Burglary of a Structure with regard to the first count.

The aforesaid plea was pursuant to an agreement with the state that substantially benefitted the Defendant. The conduct originally charged in the first count would have subjected the Defendant to a conviction for "a felony of the first degree," which is "punishable by imprisonment for a term of years not exceeding life imprisonment." FLA. STAT. § 810.02(2). Defendant's plea agreement reduced the burglary count to "a felony of the third degree," a charge typically reserved for situations in which "the offender does not make an assault or battery" and involving [s]tructure[s]" that do not contain "another person." FLA. STAT. § 810.02(4).

II. DISCUSSION

A. A Sixteen-Level Sentencing Enhancement Is Improper

The United States Sentencing Guideline provision in question specifies that, "[i]f the defendant was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is .. a crime of violence ... increase by 16 levels." U.S.S.G. § 2L1.2(b)(1)(A)(ii). At issue is whether the Defendant's prior conviction for Burglary of a Structure constitutes a "crime of violence." The commentary to the present version of § 2L1.2 defines "crime of violence." The phrase:

(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 APP. NOTE 1(B)(ii). The commentary to the guidelines is accorded "controlling weight ... if it is not plainly erroneous or inconsistent with the guidelines." United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318 (5th Cir.2003) (per curiam).

The Fifth Circuit has clarified that Application Note 1(B)(ii)'s bifurcated definition of "crime of violence" is to be read disjunctively. That is, a prior offense qualifies as a "crime of violence" if it meets the terms of either subparagraph (I) or (II), notwithstanding the use of "and" that links the two subparagraphs. In other words, if a crime is not enumerated in subparagraph (II), "it is a `crime of violence' under § 2L1.2(b)(1)(A)(ii) only if it `has as an element the use, attempted use, or threatened use of physical force against the person of another.'" United States v. Vargas-Duran, 319 F.3d 194, 196 (5th Cir. 2003), reh'g en banc granted, 336 F.3d 418 (5th Cir.2003); see also Rodriguez-Rodriguez, 323 F.3d at 318 (same).

Rodriguez-Rodriguez appears to be dispositive in the instant case. In Rodriguez-Rodriguez, the Fifth Circuit addressed the applicability of § 2L1.2(b)(1)(A)(ii) in the context of a prior Texas state conviction for "burglary of a building." Rodriguez-Rodriguez, 323 F.3d at 318. The court of appeals noted that the circuit distinguishes between burglary of a building and burglary of a dwelling, id. at 319 n. 5, and that this distinction effectively eliminates the former from subparagraph (II)'s list of crimes. Id. at 318. From there, the court concluded that Texas's burglary of a building offense also does not qualify under subparagraph (I) because, "[a]lthough violent confrontations may occur in the course of each offense, neither¹ requires the actual, attempted, or threatened use of physical force as a necessary element." Id. at 319 (emphasis in original).

In addition, the court of appeals went one step further, writing that it "need not discuss the facts underlying Rodriguez's convictions, `since we look only to the fact of conviction and the statutory definition of the prior offense to determine whether a prior conviction qualifies as a predicate offense for sentencing enhancement purposes.' " Id. (quoting Vargas-Duran, 319 F.3d at 196). In this vein, the court opined that its "categorical approach means that [a defendant] is not eligible for a crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii) even if his conviction was premised on his entry of a building without the effective consent of the owner and commission of an assault or other violent felony therein." Id. at 319 n. 9. The appellate panel reasoned that "[t]his is so because a sentencing court may not consider the conduct underlying a prior conviction when applying § 2L1.2(b)(1)(A)(ii)." Id.

Notwithstanding Rodriguez-Rodriguez, the Government has in essence argued that the Court may look to the underlying conduct in this case due to the fact that the Florida statute under which the Defendant was convicted encompasses multiple offenses, some of which would qualify as a "crime of violence" as well as others that would not so qualify. See generally FLA. STAT. § 810.02. The Government's argument is not entirely misplaced. In accord with Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Fifth Circuit has recognized a limited exception to its "categorical approach" jurisprudence. See United States v. Allen, 282 F.3d 339, 342-43 (5th Cir.2002) (allowing trial courts to look to the information or indictment and the jury instructions when a statutory definition encompasses multiple offenses, some of which would qualify for a sentencing enhancement while others would not). In particular, the Government directs the Court's attention to United States v. Spell, 44 F.3d 936 (11th Cir.1995) (per curiam), which discussed the Florida statute at issue in some detail.

Spell, however, is readily distinguishable on more than one ground. First, although the Spell court also dealt with the phrase "crime of violence," it did so in the context of a different sentencing provision, one which defines "crime of violence" rather differently.² Spell, 44 F.3d at 938. As the Eleventh Circuit noted, the commentary to this distinct provision precludes the application of a categorical approach thereunder.³ See id. at 939 ("The Guidelines' commentary also precludes the categorical approach ...."). Contrariwise, Rodriguez-Rodriguez makes perfectly clear that a categorical approach is appropriate under § 2L1.2(b)(1)(A)(ii). Rodriguez-Rodriguez, 323 F.3d at 319. The Spell court's inquiry also delved beyond the judgment of conviction on account of "the ambiguity of the conviction." Spell, 44 F.3d at 939. In the instant case, however, the Government does not dispute that the Defendant was convicted of mere Burglary of a Structure under FLA. STAT. § 810.02(4). Furthermore, even if the Court were confronted with a dispute as to the specific provision of FLA. STAT. 810.02 under which the Defendant was convicted, examination of Defendant's Florida felony plea form makes it unmistakably clear that the Defendant pleaded guilty to an offense under subsection (4) of the Florida statute. In short, there is no ambiguity about the nature of the Defendant's conviction, at least not after examining the plea agreement. Indeed, there is really no ambiguity on the face of the judgment, which identifies the Defendant's conviction for burglary as...