United States v. Antonio-Agusta

• Decision Date: 07 March 2012
• Docket Number: No. 11–1008.,11–1008.
• Citation: 672 F.3d 1209
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose ANTONIO–AGUSTA, also known as Ricardo Jose Artiaga, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

672 F.3d 1209

UNITED STATES of America, Plaintiff–Appellee,

v.Jose ANTONIO–AGUSTA, also known as Ricardo Jose Artiaga, Defendant–Appellant.

No. 11–1008.

United States Court of Appeals, Tenth Circuit.

March 7, 2012.

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant–Appellant.

Ryan T. Bergsieker, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff–Appellee.

Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Jose Antonio–Agusta appeals the district court's application of U.S.S.G. § 2L1.2(b)(1)(A)(ii)'s sixteen-level sentence enhancement in calculating his advisory Guidelines range.¹ He argues the district court erred in relying on the indictment underlying his prior Arizona convictions to conclude those convictions constitute felony crimes of violence, warranting the enhancement. The district court did not err, however, because the indictment was incorporated by reference in the judgment and is therefore reliable evidence of the elements of Antonio–Agusta's prior convictions. Furthermore, the indictment, plea agreement, and judgment reveal Antonio–Agusta was convicted under parts of Arizona's aggravated assault statutes that constitute crimes of violence. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms the sentence imposed by the district court.

II. Background

Antonio–Agusta pleaded guilty to one count of unlawful re-entry after removal. 8 U.S.C. § 1326(a). The Presentence Investigation Report (“PSR”) treated Antonio–Agusta's prior Arizona convictions for aggravated assault as felony crimes of violence and applied a sixteen-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).² In so doing, the PSR relied on the indictment underlying Antonio–Agusta's Arizona convictions, which revealed he used a dangerous weapon, i.e., a knife, in connection with those convictions.

At sentencing, the district court also relied on the indictment in concluding that Antonio–Agusta's Arizona convictions constituted felony crimes of violence, warranting the sentence enhancement. With the enhancement, the advisory guidelines range was fifty-one to seventy-one months. The district court varied downward and sentenced Antonio–Agusta to forty-six months' imprisonment.

The Arizona indictment charged Antonio–Agusta with three counts of felony aggravated assault. Each of the counts was identical, except for the name of the victim:

[Jose Antonio–Agusta], on or about the 7th day of June, 2006, using a knife, a deadly weapon or dangerous instrument, intentionally placed [victim] in reasonable apprehension of imminent physical injury, in violation of A.R.S. §§ 13–1203, 13–1204, 13–701, 13–702, 13–702.01, and 13–1801.

The State of Arizona further alleges that the offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a knife, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon [victim], in violation of A.R.S. § 13–604(P).

Antonio–Agusta pleaded guilty to an amended version of these three counts. The plea agreement sets out the manner in which the counts were amended: “The State agrees to dismiss the allegation of dangerousness,” in exchange for Antonio–Agusta pleading guilty to “Counts 1–3, as amended, Aggravated Assault, Class 3 nondangerous felonies, in violation of A.R.S. §§ 13–1203, 13–1204, 13–701, 13–702.01, and 13–801.” The plea agreement also states it “serves to amend the complaint or information, to charge the offense to which the defendant pleads, without the filing of any additional pleading.” Finally, the judgment states Antonio–Agusta is guilty of:

OFFENSE: Counts 1, 2, and 3 Amended Aggravated Assault Class 3 felonies.

A.R.S. [§ ] § 13–1203, 1204, 701, 702, 702.01, 801

Date of Offense: 06/07/2006

Non Dangerous—Non Repetitive

III. Discussion

This court reviews de novo a district court's interpretation of the Guidelines and its determination that a prior conviction is a crime of violence. United States v. Perez–Vargas, 414 F.3d 1282, 1284 (10th Cir.2005).³

U.S.S.G. § 2L1.2(b)(1)(A)(ii) requires the sentencing court to add sixteen levels to a defendant's offense level if the defendant was previously removed following a conviction for a felony that is a crime of violence. A crime of violence includes an “aggravated assault” and “any other 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, app. n.1 (B)(iii).⁴

In determining whether a prior conviction is a crime of violence, courts employ a “formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Perez–Vargas, 414 F.3d at 1284 (quotation omitted). If the statute is ambiguous, however, “or broad enough to encompass both violent and nonviolent crimes, a court can look beyond the statute to certain records of the prior proceeding, such as the charging documents, the judgment,” and “the terms of a plea agreement or transcript of colloquy between judge and defendant.” Id. (quotations omitted). This approach is commonly referred to as the modified categorical approach. United States v. Zuniga–Soto, 527 F.3d 1110, 1119–20 (10th Cir.2008). By reviewing the documents underlying a prior conviction, the sentencing court can determine whether the defendant was necessarily convicted of an offense that warrants a sentence enhancement. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The parties agree a conviction under the Arizona aggravated assault statutes is not categorically a crime of violence and the modified categorical approach applies.

Using the modified categorical approach, the district court reviewed the indictment, plea agreement, and judgment underlying Antonio–Agusta's Arizona convictions and concluded the convictions qualified as crimes of violence. The first paragraph of each of the counts in the indictment charged that Antonio–Agusta “using a knife, a deadly weapon or dangerous instrument, intentionally placed [victim] in reasonable apprehension of imminent physical injury, in violation of A.R.S. §§ 13–1203, 13–1204, 13–701, 13–702, 13–702.01, and 13–1801.” Relying on this language, the district court determined Antonio–Agusta was convicted under the following parts of Arizona's aggravated assault statutes: “A person commits aggravated assault if the person commits assault as defined in section 13–203 ... us[ing] a deadly weapon or dangerous instrument,” Ariz.Rev.Stat. Ann. § 13–1204(A)(2); and “A person commits assault by ... [i]ntentionally placing another person in reasonable apprehension of imminent physical injury.” Ariz.Rev.Stat. Ann. § 13–1203(A)(2).⁵ The court concluded these provisions correspond with the generic definition of “aggravated assault” and also constitute 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.” U.S.S.G. § 2L1.2, app. n.1 (B)(iii). Thus, the court applied the sixteen-level sentence enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Antonio–Agusta does not dispute the indictment underlying his prior convictions reveals he was charged with three offenses that qualify as crimes of violence. Instead, he argues the district court erred by relying on the indictment to reach its conclusion because Arizona law makes clear the indictment is not reliable evidence of the elements of his prior convictions. In particular, he argues the indictment was not incorporated by reference in the judgment. He further argues the plea agreement and judgment amended the indictment, making it unclear whether he was convicted under parts of Arizona's aggravated assault statutes that constitute crimes of violence.

A. Whether the Indictment was Incorporated by Reference in the Judgment

Under Arizona law, a charging document is reliable evidence of the elements of a prior conviction only if it is incorporated by reference in the judgment. State v. Joyner, 215 Ariz. 134, 158 P.3d 263, 272 (App.2007); State v. Thompson, 186 Ariz. 529, 924 P.2d 1048, 1051 (App.1996).⁶ In Thompson the Arizona Court of Appeals held a judgment specifying “that the conviction was pursuant to Count I of the Information ... effectively incorporated Count I of the charging document by reference.” 924 P.2d at 1051. Thus, the sentencing court properly considered both the information and the judgment in determining whether the defendant's prior conviction constituted a felony for purposes of an Arizona sentence enhancement provision. Id. A judgment that did not “refer to the charging document in any respect,” however, did not incorporate the charging document by reference, and the charging document could not be relied upon to determine the nature of the defendant's prior conviction. Id. An Arizona charging document is only reliable evidence of the elements of a prior conviction if it is incorporated by reference in the judgment because, under Arizona law, “initial charges can be amended at trial or in change of plea proceedings.” Id. at 1051–52 (citing Ariz. R.Crim. P. 13.5(b)).

The judgment underlying Antonio–Agusta's Arizona convictions states he was convicted of “Counts 1, 2, and 3 Amended Aggravated Assault.” While the judgment describes Counts 1, 2 and 3 as aggravated assaults it does not set forth the counts themselves or otherwise indicate their elements. Thus, the judgment must refer to another document that sets forth the counts in their entirety, like a charging document. In this case,...