United States v. Cabrera-Umanzor

• Decision Date: 26 August 2013
• Docket Number: No. 11-4621,11-4621
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HANS ELVIN CABRERA-UMANZOR, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HANS ELVIN CABRERA-UMANZOR, Defendant - Appellant.

No. 11-4621

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 21, 2012

Decided: August 26, 2013

PUBLISHED

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:11-cr-00027-PJM-1)

Before TRAXLER, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Niemeyer and Judge Motz joined.

ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Erin Baxter Pulice, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland for Appellee.

TRAXLER, Chief Judge:

Hans Cabrera-Umanzor pleaded guilty to unlawful re-entry of a removed alien after an aggravated felony conviction. See 8 U.S.C. § 1326(a)(1). Applying what is generally referred to as the "modified categorical approach," the district court determined that Cabrera's prior conviction under Maryland's child abuse statute was a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court therefore increased Cabrera's base offense by 16 levels, see id., and sentenced Cabrera to 41 months' imprisonment. Cabrera appeals, challenging the application of the 16-level enhancement. Given our recent decision in United States v. Gomez, 690 F.3d 194 (4th Cir. 2012), and the Supreme Court's even more recent decision in Descamps v. United States, 133 S. Ct. 2276 (2013), we agree with Cabrera that the modified categorical approach is inapplicable and that under the categorical approach, his prior conviction is not a crime of violence.

I.

Sentencing for § 1326 offenses is governed by U.S.S.G. § 2L1.2. The Guideline establishes a base offense level of 8, see id. § 2L1.2(a), and provides for various offense-level enhancements depending on the specific characteristics of the defendant's offense, see id. § 2L1.2(b). At issue in this caseis the 16-level enhancement that applies in cases where the defendant was deported after "a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Commentary to § 2L1.2 defines "crime of violence" as

any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or 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 cmt. n.1(B)(iii); see United States v. Peterson, 629 F.3d 432, 435 (4th Cir. 2011) (Guidelines commentary "is authoritative and binding, unless it violates the Constitution or a federal statute, or is inconsistent with, or plainly erroneous reading of the Guideline itself." (internal quotation marks omitted)).

When determining whether a prior conviction triggers a Guidelines sentencing enhancement, we approach the issue categorically, looking "only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602 (1990). The categorical approach focuses on the elements of the prior offense rather than the conduct underlying the conviction; a prior convictionconstitutes a conviction for the enumerated offense if the elements of the prior offense "correspond[] in substance" to the elements of the enumerated offense. Id. at 599. "[W]here Congress has not indicated how a prior offense enumerated in a sentencing enhancement statute is to be interpreted, it should be understood to refer to 'the generic, contemporary meaning' of the crime." United States v. Rangel-Casteneda, 709 F.3d 373, 376 (4th Cir. 2013) (quoting Taylor, 495 U.S. at 598). The point of the categorical inquiry is not to determine whether the defendant's conduct could support a conviction for a crime of violence, but to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence. See Descamps, 133 S. Ct. at 2288.

The inquiry is a bit different, however, in cases involving "divisible" statutes of conviction -- statutes that set out elements in the alternative and thus create multiple versions of the crime. See Descamps, 133 S. Ct. at 2284; Gomez, 690 F.3d at 199. If a defendant was convicted of violating a divisible statute, reference to the statute alone "does not disclose" whether the conviction was for a qualifying crime. Descamps, 133 S. Ct. at 2284. In such a case, the sentencing court may apply the modified categorical approach and consult certain approved "extra-statutory materials . . . to determine whichstatutory phrase was the basis for the conviction." Id. at 2285 (internal quotation marks omitted).

As the Supreme Court emphasized, however, the modified categorical approach, "serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps, 133 S. Ct. at 2283. Where the statute defines the offense broadly rather than alternatively, the statute is not divisible, and the modified categorical approach simply "has no role to play." Id. at 2285.

II.

After admitting to having sexual intercourse with an 11-year-old girl when he was 19 years old, Cabrera pleaded guilty in 2001 in Maryland state court to a charge of causing abuse to a child. See Md. Code, art. 27, § 35C (2000). At a sentencing hearing conducted before the issuance of our opinion in Gomez or the Supreme Court's opinion in Descamps, the district court held that the modified categorical approach applied because some, but not all, of the conduct proscribed by § 35C would constitute a crime of violence. The court then concluded, without considering the elements of the state crime, that having sexual intercourse with an 11-year-old was a forcible sex offense andthus a crime of violence under U.S.S.G. § 2L1.2. After application of the 16-level enhancement, Cabrera's total offense level was 21 and his advisory sentencing range was 41-51 months. The district court sentenced Cabrera to 41 months' imprisonment.

On appeal, Cabrera argues that § 35C is not divisible and that the district court therefore erred by applying the modified categorical approach. Cabrera further argues that a conviction for sexual abuse under § 35C is not a crime of violence under the categorical approach, because the elements of sexual abuse under § 35C do not include the elements of the relevant offenses enumerated in the Commentary. We agree.

A.

At the time of Cabrera's offense, § 35C provided that "[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a household or family member who causes abuse to the child is guilty of a felony." Md. Code, art. 27, § 35C(b)(1). The statute defined "abuse" as "(i) [t]he sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act . . . ; or (ii) [s]exual abuse of a child, whether physical injuries are sustained or not." Id. § 35C(a)(2). As to "sexual abuse," the statute provided as follows:

(6)(i) "Sexual abuse" means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member.

(ii) "Sexual abuse" includes, but is not limited to:

1. Incest, rape, or sexual offense in any degree;

2. Sodomy; and

3. Unnatural or perverted sexual practices.

Md. Code, art. 27, § 35C(a)(6).¹

To convict a defendant of sexual abuse under § 35C thus requires proof of the following elements: "(1) that the defendant is a parent, family or household member, or had care, custody, or responsibility for the victim's supervision; (2) that the victim was a minor at the time; and (3) that the defendant sexually molested or exploited the victim by means of a specific act." Schmitt v. State, 63 A.3d 638, 643 (Md. Ct. Spec. App. 2013), cert. denied (Md. July 05, 2013) (Table, No. 103 Sept. Term 2013); see Tribbitt v. State, 943 A.2d 1260, 1265-66 (Md. 2008). The State is not obliged to prove that the defendant acted with the intent to gratify his sexual urges, seeWalker v. State, __ A.3d __, 2013 WL 3456566, at *18 (Md. July 8, 2013); Tate v. State, 957 A.2d 640, 648 (Md. Ct. Spec. App. 2008), or that he used force or coercion to accomplish the crime, see Brackins v. State, 578 A.2d 300, 302 (Md. Ct. Spec. App. 1990). The defendant need not touch the victim to be guilty of sexual abuse. Indeed, a conviction for sexual abuse under § 35C does not require an affirmative act of any kind; criminal liability can be premised on the defendant's failure to prevent sexual abuse. See Walker, 2013 WL 3456566, at *15 ("[C]hild sexual abuse includes not only an affirmative act but one's omission or failure to act to prevent molestation or exploitation when it is reasonably possible to act and when a duty to do so exists" (internal quotation marks and alteration omitted)).

B.

It is clear from its text that § 35C is generally divisible -- the statute prohibits the abuse of a child by a family member or a person with responsibility for the child's supervision, and it defines the "abuse" element in the alternative, as either physical abuse or sexual abuse. See Gomez, 690 F.3d at 201. And the...