United States v. Carmona-Garcia

• Court: U.S. District Court — District of New Mexico
• Writing for the Court: ROBERT C. BRACK UNITED STATES DISTRICT JUDGE
• Decision Date: 26 April 2016
• Docket Number: Case No. 2:16-CR-318 RB
• Citation: United States v. Carmona-Garcia, Case No. 2:16-CR-318 RB (D. N.M. Apr 26, 2016)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOSE LUIS CARMONA-GARCIA, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. JOSE LUIS CARMONA-GARCIA, Defendant.

Case No. 2:16-CR-318 RB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 26, 2016

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendant Jose Luis Carmona-Garcia's Objection to Presentence Report and Request for Variance (Doc. 14). Having reviewed the parties' submissions and arguments, the Court GRANTS the objection and GRANTS the request for a variance.

I. BACKGROUND

Jose Luis Carmona-Garcia is a Mexican citizen. (PSR ¶ 5.) Thirteen years ago, he was convicted of four counts of aggravated assault under Ga. Code. Ann. § 16-5-21 (2002) in Decatur, Georgia. (Id. at ¶ 22 (listing a 2003 conviction); Doc. 15-1 (alleging crime committed in 2002).) According to Mr. Carmona-Garcia, when he was 19-years old he was in a car with a gun and the gun accidentally discharged. (Apr. 21, 2016 Draft Hr'g. Tr. at 3; PSR ¶ 22; see also Doc. 14 at 10.) Mr. Carmona-Garcia was charged with aggravated assault against individuals near the car. (Apr. 21, 2016 Draft Hr'g. Tr. at 3.) He pled no contest and was sentenced to two years of custody for each count, which was reduced to 30 days for each count with each count to run concurrently. (Apr. 21, 2016 Draft Hr'g. Tr. at 3-4; PSR ¶ 22.) At some point, Mr. Carmona-Garcia's probation was revoked and he spent six months in custody. (PSR. ¶ 22.) Less than a year later, the sentence was reduced to time served and Mr. Carmona-Garcia was deported. (Id. at ¶ 5.)

Mr. Carmona-Garcia has since made a life in Mexico. The year he returned to Mexico, Mr. Carmona-Garcia married his wife. (PSR ¶ 31.) They had four children together, but two of his children have passed away. (Id.) Mr. Carmona-Garcia grows corn and beans for his family in Mexico and financially supports his wife, their two children, and his parents. (Id. at ¶¶ 36, 56.) His situation came to a head when his two-year-old son developed a stone in his liver and the family could not afford to pay for his son's operation. (Id. at ¶ 31; Doc. 14-1 at 2.)

Mr. Carmona-Garcia returned to the United States to send back money for his son's medical care, but the U.S. Border Patrol apprehended him in the New Mexico desert along the United States-Mexico border on November 20, 2015. (Id. at ¶¶ 5, 31.) He pled guilty to 8 U.S.C. § 1326(a)(2) for illegal reentry. (Id. at 4.) Based on Mr. Carmona-Garcia's previous conviction, the U.S. Probation office recommended a 12-level enhancement for a crime of violence pursuant to U.S. Sentencing Guidelines Manual (USSG) § 2L1.2(b)(1)(A)(ii). (Id. at ¶ 11.) However, the office further noted that a downward variance may be appropriate due to Mr. Carmona-Garcia's individual circumstances. (PSR ¶¶ 56-57.) Mr. Carmona-Garcia filed his Objection to Presentence Report and Request for Variance, asserting that the Georgia aggravated assault conviction does not qualify as a crime of violence and in the alternative requesting that the Court allow a downward variance to five months. (Doc. 14 at 1.)

The Georgia aggravated assault conviction, pursuant to Ga. Code. Ann. § 16-5-21, does not qualify for the crime of violence enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii). The Georgia aggravated assault statute lacks a sufficient intent element, which exists in both the generic aggravated assault provision and the provision for other laws with an element involving"threatened use of physical force against the person of another." See supra Section III(a). Additionally, the "serious bodily injury" element in the Georgia aggravated assault statute encompasses more than the serious bodily injury element in the general aggravated assault provision. See supra Section III(b). Thus Mr. Carmona-Garcia's conviction does not qualify as a crime of violence. See supra Section III(c). The Court further grants a one-month downward variance because of the age of the conviction, the forthcoming amendments to the guidelines, and Mr. Carmona-Garcia's personal circumstances. See supra Section IV. Finally, even if the Georgia aggravated assault qualifies as a crime of violence, the Court grants a 19-month variance for the same reasons. See id.

II. LEGAL STANDARD FOR OBJECTION TO ENHANCEMENT

Courts generally use the categorical approach to determine whether state laws qualify as general laws listed in federal statutes and sentencing guidelines. See, e.g, Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (Armed Career Criminal Act); United States v. De La Cruz-Garcia, 590 F.3d 1157, 1159 (10th Cir. 2010) (USSG § 2L1.2). Under the categorical approach, courts ignore the actual facts of the conviction and instead compare the state crime with the general crime or guideline. See Descamps, 133 S. Ct. at 2283. Notably, the title of the statute does not dictate the analysis. United States v. Garcia-Caraveo, 586 F.3d 1230, 1233 (10th Cir. 2009). Instead, the elements of the state law must correspond with the elements of the "uniform generic definition of the crime . . . ." United States v. Garcia-Caraveo, 586 F.3d 1230, 1233 (10th Cir. 2009) (quoting Taylor v. United States, 495 U.S. 575, 589 (1990)); Taylor, 495 U.S. 598. Courts determine the generic definition by examining state laws governing the offense and "prominent secondary sources, such as criminal law treatises and the Model Penal Code." Id. Courts then "presume that the conviction 'rested upon nothing more than the least of the acts'criminalized [in the state statute], and . . . determine whether even those acts are encompassed by the generic federal offense." Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Johnson v. United States, 559 U.S. 122, 137 (2010)).

If a state law has alternate elements (or definitions), either of which establish conviction, courts use a modified categorical approach. See Descamps, 133 S.Ct. at 2283-84. Under the modified categorical approach, courts use specific documents, like the indictment, to identify which alternate definition was used to convict the offender and compare that definition with the elements in the general crime or guideline. See id. at 2281. Then, courts proceed in the same manner as the categorical approach. Id. at 2285.

III. DISCUSSION OF OBJECTION TO ENHANCEMENT

The guideline for a crime of violence under USSG § 2L1.2 includes two relevant definitions. First, state laws that prohibit "aggravated assault" are crimes of violence. USSG § 2L1.2 cmt. 1(B)(iii). Second, crimes of violence include "any other offense under . . . state . . . law that has as an element the use, attempted use, or threatened use of physical force against the person of another." Id.

These two definitions require either (1) intent beyond recklessness or (2) causation of serious bodily injury. "A person is guilty of [the generic crime for] aggravated assault if he: (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." Model Penal Code § 211.1(2); see also United States v. Gastelum-Laurean, 370 F. App'x 938, 941 (10th Cir. 2010) (relying on Model Penal Code); United States v. Fierro-Reyna, 466 F.3d 324, 329 (5th Cir. 2006) (same); United States v. McFalls, 592 F.3d 707, 717 (6th Cir.2010) (same). Conversely, the definition involving "the use, attempted use, or threatened use of physical force against the person of another" always requires that the defendant act more than recklessly. See United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008) (determining an assault crime did not qualify because it included reckless use of force). Thus, under either definition, any conviction for aggravated assault requires at least knowing intent or causation of serious bodily injury.

A. Intent Requirement

Whereas the intent requirement in the generic aggravated assault crime is clear, the intent requirement for an offense with an element of threatened use of force requires more subtle analysis. The "use . . . of physical force" requirement in the USSG. § 2L1.2 definition "implies the active employment of force" and thus requires more than recklessness. Zuniga-Soto, 527 F.3d 1110 at 1123-24 (quoting Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (omissions in Zuniga-Soto); see also Jobson v. Ashcroft, 326 F.3d 367, 372-76 (2d Cir. 2003); Oyebanji v. Gonzales, 418 F.3d 260, 264-65 (3d Cir. 2005) (Alito, J.); Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir. 2005); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 609-12 (7th Cir. 2001); United States v. Torres-Villalobos, 487 F.3d 607, 616 (8th Cir. 2007); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc). In Zuniga-Soto, the court noted that the Texas statute for assault on a civil servant would also hypothetically criminalize a "defendant's reckless behavior [with a car, which] led to an unintended collision with a uniformed police officer." Id. at 1125. The court determined that this hypothetical crime would not include an active use of force, namely the requisite knowing intent, and thus held that the Texas statute was too broad to qualify as a crime of violence. See id.

Relatedly, courts distinguish between state statutes that prohibit "the consequences of theconduct" from the guidelines, which "look to the type of conduct that causes the injury." Zuniga-Soto, 527 F.3d at 1125 n.3 (quoting United States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005)) (emphasis in Zuniga-Soto). In other words, there is a difference between focusing "on the result of a defendant's conduct" and focusing "on the means by which an injury occurs . . . ." Perez-Vargas, 414 F.3d at 1285 (emphasis in original). Based on this discrepancy, the Zuniga-Soto court concluded that, "because [the Texas statute]...