U.S. v. Zuniga-Soto

• Decision Date: 03 June 2008
• Docket Number: No. 06-2364.,06-2364.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Monico ZUNIGA-SOTO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

527 F.3d 1110

UNITED STATES of America, Plaintiff-Appellee, v. Monico ZUNIGA-SOTO, Defendant-Appellant.

No. 06-2364.

United States Court of Appeals, Tenth Circuit.

June 3, 2008.

Scott M. Davidson, Albuquerque, NM, for Defendant-Appellant, Monico Zuniga-Soto.

William J. Pflugrath, Assistant United States Attorney (Larry Gomez, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before HENRY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge.

HENRY, Chief Judge.

Monico Zuniga-Soto pleaded guilty to illegally re-entering the United States in violation of 8 U.S.C. § 1326 and now appeals his sentence. He argues that the district court erred in applying a sixteen-level enhancement to his Guidelines calculation because it incorrectly determined that his prior conviction for assaulting a public servant in violation of section 22.01 of the Texas Penal Code qualified as a "crime of violence" under U.S.S.G. § 2L1.2. Section 2L1.2 defines that term to include any felony under state or federal 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(b)(1)(A)(ii); id. at cmt. n. 1(B)(iii) (emphasis added). Mr. Zuniga-Soto maintains that his prior conviction was not a crime of violence for two reasons: (1) the statute allows convictions for reckless conduct and thus does not require the "use" — i.e., active, intentional employment — of physical force, as required by developing caselaw; and (2) the statute requires proof of causation of injury, but not proof of the use, attempted, or threatened use of physical force and, for that reason also, does not satisfy § 2L1.2's use of physical force requirement.

We agree with Mr. Zuniga-Soto's first argument and reverse the district court's decision. Therefore, we need not decide whether we would reverse the district court's "crime of violence" determination on the basis of Mr. Zuniga-Soto's second contention as well. Prior to addressing the substance of Mr. Zuniga-Soto's contentions, however, we consider whether the application § 2L1.2's "crime of violence" enhancement provision depends only on the statutory definition of the prior offense, or, in the alternative, whether a court may also examine the conduct underlying the defendant's conviction to determine if he in fact used physical force when committing the prior offense. We hold that § 2L1.2's "as an element" language limits the scope of a proper inquiry to the statutory definition of the prior offense and does not permit judicial examination of the facts behind conviction. As we explain, a court may consider certain judicial records only for the purpose of determining which part of a divisible statute was charged against a defendant and, therefore, which part of the statute to examine on its face. We note that our court has not applied § 2L1.2's "crime of violence" enhancement provision in this manner in every case, which has, unfortunately, resulted in some confusion for district courts. However, we are convinced that the inquiry outlined in this opinion is necessary under § 2L1.2's definition of "crime of violence."

Taking jurisdiction under 28 U.S.C. § 1291, we reverse the district court's determination, vacate Mr. Zuniga-Soto's sentence, and remand for re-sentencing.

I. BACKGROUND

A. Facts and Procedural History

In June 2002, Mr. Zuniga-Soto pleaded guilty to assault on a public servant in violation of section 22.01 of the Texas Penal Code. The state court sentenced Mr. Zuniga-Soto to ten years' imprisonment, suspended. Later, Mr. Zuniga-Soto violated conditions of his suspended sentence, and a Texas state court sentenced him to two years' imprisonment. He was deported to Mexico in February 2004. In June 2006, U.S. Customs and Border Protection agents apprehended Mr. Zuniga-Soto just north of the United States-Mexico border near Sunland Park, New Mexico. He ultimately pleaded guilty to illegally re-entering the United States in violation of 8 U.S.C. § 1326.

Under § 2L1.2, the Guidelines range of an individual who has been convicted of unlawfully re-entering the United States, as Mr. Zuniga-Soto was, must be enhanced by sixteen levels if the defendant has previously been convicted of a felony that qualifies as a "crime of violence" as defined by that section. § 2L1.2(b)(1)(A)(ii). The district court concluded that Mr. Zuniga-Soto's prior offense was a crime of violence because it had "as an element" the use of physical force, and, accordingly, the court imposed a sixteen-level enhancement in Mr. Zuniga-Soto's Guidelines calculation. Mr. Zuniga-Soto objected to the enhancement on the grounds that the mens rea component of Texas's assault statute did not require a sufficient level of culpability to qualify as a crime of violence under § 2L1.2's definition of that term because it allowed convictions for reckless conduct.

The district court did not explicitly refer to the elements of assault on a public servant under Texas law when sentencing Mr. Zuniga-Soto. Rather, the court cited the conduct underlying Mr. Zuniga-Soto's assault conviction, which was described in the presentence report. According the presentence report, Mr. Zuniga-Soto pleaded guilty to assault in violation of section 22.01 after a physical altercation with police officers during which he bit one officer and kicked another. The court observed: "[I]t's hard for me to envision a scenario in which you can kick one police officer and bite another and not be guilty of a violent crime or intentional assault." Rec. vol. III, at 7-8. Though, it added: "I think [Mr. Zuniga-Soto's alleged] intoxication could possibly negate the intentional [conduct]...." Id. at 8. At no point during the sentencing hearing did the court refer to any document other than the presentence report.

Under the Guidelines, the base offense level for a violation of 8 U.S.C. § 1326 is eight. Following his guilty plea, Mr. Zuniga-Soto received a reduction of two offense levels for accepting responsibility. See U.S.S.G. § 3E1.1. The government agreed to an additional level of downward adjustment, meaning that, on the whole, Mr. Zuniga-Soto's offense level was reduced by three. The addition of the sixteen-level "crime of violence" enhancement yielded an offense level of twenty-one, or 41-51 months' imprisonment. The district court sentenced Mr. Zuniga-Soto to 41 months' imprisonment in accordance with its Guidelines calculation.

B. Statutory Provisions

It is undisputed that Mr. Zuniga-Soto pleaded guilty to assaulting a public servant in violation of TEX. PEN.CODE § 22.01. That statute provides:

(a) A person commits an [assault] if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:

(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty....

TEX. PEN.CODE § 22.01(a)-(b) (emphasis added). We note that subsection (b)(1), the assault on a public servant provision, refers only to subsection (a)(1). Thus, in order to have been guilty of violating subsection (b)(1), Mr. Zuniga-Soto must have violated (a)(1). Subsections (a)(2) and (a)(3) are therefore irrelevant to our inquiry.

As we noted above, § 2L1.2(b)(1)(A)(ii) mandates a sixteen level increase in the Guidelines calculation of a defendant who has been convicted of illegally re-entering the United States in violation of 8 U.S.C. § 1326 if the defendant was previously convicted of a felony that qualifies as a "crime of violence." However, § 2L1.2(b)(1)(A)(ii) does not define the term. Our inquiry is guided by the definition of "crime of violence" provided in the commentary accompanying § 2L1.2. United States v. Torres-Ruiz, 387 F.3d 1179, 1181 (10th Cir.2004) ("Commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."). Under § 2L1.2's definition, there are two ways in which a prior felony conviction may be properly characterized as a crime of violence. First, a felony automatically qualifies if it is one of twelve enumerated offenses. § 2L1.2 cmt. n. 1(B)(iii). Alternatively, "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" and is a felony is a crime of violence under § 2L1.2. Id.

The district court did not find, and the government has not argued, that Mr. Zuniga-Soto's prior offense could be properly characterized as one of the offenses listed in Comment 1(B)(iii). And, neither party contends that the offense at issue had as an element the attempted, or threatened use of physical force. Therefore, our sole task is to determine whether the district court correctly concluded that Mr. Zuniga-Soto's prior felony conviction qualifies as a crime of violence because the offense had as an element the use of physical force. Id.

C. The Parties' Contentions

On appeal, Mr. Zuniga-Soto argues that his prior conviction did not have as an element the use of physical force because the Texas assault statute's mens rea component could be satisfied by recklessness. Mr. Zuniga-Soto's contention relies primarily on Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), in which the Supreme Court held that a criminal statute without a ...