United States v. Garcia-Figueroa, 13–40114.

• Decision Date: 12 June 2014
• Docket Number: No. 13–40114.,13–40114.
• Citation: 753 F.3d 179
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Adan GARCIA–FIGUEROA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

753 F.3d 179

UNITED STATES of America, Plaintiff–Appellee

v.Adan GARCIA–FIGUEROA, Defendant–Appellant.

No. 13–40114.

United States Court of Appeals,Fifth Circuit.

June 12, 2014.

James Lee Turner, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. ^*

NANNETTE JOLIVETTE BROWN, District Judge:

Defendant Adan Garcia–Figueroa appeals his sentence after conviction for conspiracy to bring illegal aliens into the United States, bringing illegal aliens into the United States, and being unlawfully present in the United States following a prior deportation. Specifically, he challenges the district court's application of the United States Sentencing Guidelines (“U.S.S.G.”), averring that the district court erred in its assessment of a 12–level crime of violence enhancement, and in its grouping of Garcia–Figueroa's counts of conviction. Because we conclude that the district court erred in its application of the grouping guidelines, we VACATE and REMAND the case for resentencing.

BACKGROUND

On June 5, 2012, border patrol agents arrested Garcia–Figueroa near Hidalgo, Texas, after Garcia–Figueroa was caught smuggling between 12 and 17 illegal aliens across the Rio Grande in an inflatable raft. On September 6, 2012, Garcia–Figueroa was charged by a three-count superseding indictment with (1) conspiracy to bring illegal aliens into the United States, (2) bringing illegal aliens into the United States, and (3) being unlawfully present in the United States following a prior deportation. Following a three-day jury trial, Garcia–Figueroa was convicted on all three counts.

A probation officer compiled Garcia–Figueroa's presentence investigation report (“PSR”). The PSR grouped Counts 1 and 2 together, but determined that they were not groupable with Count 3. For Counts 1 and 2, the PSR assigned a base offense level of 12. U.S.S.G. § 2L1.1(a)(3). Additionally, the PSR applied three enhancements. First, it included a 3–level enhancement because the offense involved smuggling between 6 and 24 unlawful aliens. U.S.S.G. § 2L1.1(b)(2)(A). Second, the PSR added a 2–level enhancement because the defendant committed the offense after a conviction for a felony immigration and naturalization offense. U.S.S.G. § 2L1.1(b)(3)(A). Third, the PSR applied a 2–level enhancement for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person; specifically, the PSR noted that Garcia–Figueroa had placed the unlawful aliens in an overcrowded inflatable raft without life jackets in order to cross the Rio Grande. U.S.S.G. § 2L1.1(b)(6). Garcia–Figueroa's adjusted offense level for Counts 1 and 2 was 19. With respect to Count 3, Garcia–Figueroa's base offense level was 8. U.S.S.G. § 2Ll.2(a). Additionally, the PSR recommended that Garcia–Figueroa's offense level be increased 12 levels because his deportation occurred after his conviction of a crime of violence (“COV”). U.S.S.G. § 2L1.2(b)(1)(A)(ii). After applying a multiple-count adjustment, the PSR assigned Garcia–Figueroa a total offense level of 22. U.S.S.G. § 3D1.4. With a criminal history category of III, Garcia–Figueroa's recommended Guidelines range was 51 to 63 months' imprisonment.

Prior to sentencing, Garcia–Figueroa filed objections to the PSR, challenging the 2–level reckless-endangerment enhancement and the 12–level COV enhancement, and asserting that Count 3 should be grouped with Counts 1 and 2. The government also filed an objection, requesting that the Court assess a 2–level enhancement for obstructing or impeding the administration of justice because Garcia–Figueroa had given false testimony at his trial. U.S.S.G. § 3C1.1.

A sentencing hearing was held on January 23, 2013. The district court overruled Garcia–Figueroa's COV objection and grouping objection. With respect to Garcia–Figueroa's reckless endangerment objection, the district court declined to rule on the issue, characterizing it as “academic.” Because Garcia–Figueroa's offense level for Count 3 was higher than his offense level for Counts 1 and 2, the district court reasoned that the total offense level would be 22 regardless of whether the reckless endangerment enhancement was applied to the smuggling offense. Finally, regarding the obstruction of justice enhancement, the district court granted the government's objection, finding that Garcia–Figueroa had given perjured, material testimony at trial.

Following its ruling on the objections, the court determined that Garcia–Figueroa had a total offense level of 24 and a criminal history category of III, giving him a Guidelines range of 63 to 78 months. The court sentenced Garcia–Figueroa to 70 months, within the Guidelines range. Garcia–Figueroa timely appealed.

DISCUSSION

I.

On appeal, Garcia–Figueroa first argues that the district court erred in its assessment of a 12–level COV enhancement based on his prior conviction in Florida state court for “attempted aggravated battery on [a] law enforcement officer with a law enforcement officer's firearm” in violation of Florida Statute §§ 784.07, 777.04, and 775.0875. U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a 12–level enhancement where “the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” A COV is defined in the commentary to the Guidelines as:

... any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., 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). This court has “interpreted this provision to mean that a prior offense is a crime of violence if it: ‘(1) has physical force as an element, or (2) qualifies as one of the enumerated offenses.’ ” United States v. Herrera, 647 F.3d 172, 175 (5th Cir.2011) (quoting United States v. Gomez–Gomez, 547 F.3d 242, 244 (5th Cir.2008) (en banc), superseded by regulation on other grounds, as stated in United States v. Diaz–Corado, 648 F.3d 290, 294 (5th Cir.2011)). Garcia–Figueroa argues that his prior conviction for attempted aggravated assault neither has physical force as an element, nor qualifies as an enumerated offense. Additionally, he contends that Florida's definition of “attempt” is too broad to constitute “attempt” under the Sentencing Guidelines. We review the district court's characterization of a defendant's prior conviction as a COV de novo.¹United States v. Calderon–Pena, 383 F.3d 254, 256 (5th Cir.2004) (en banc) (per curiam).

Looking at Garcia–Figueroa's prior crime, the judgment in Garcia–Figueroa's prior case indicates that he was convicted in 1991 for “attempted aggravated battery on [a] law enforcement officer with a law enforcement officer's firearm” in violation of Florida Statute §§ 784.07, 777.04, and 775.0875. Florida Statute § 784.07 provides that aggravated battery is classified as a first-degree felony when it is committed against a law enforcement officer. Fla. Stat. § 784.07(2)(d) (1991). However, § 784.07 does not list the specific elements of aggravated battery. Those elements are found in § 784.045, which provides that a person is guilty of aggravated battery “who, in committing battery: 1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or 2. Uses a deadly weapon.” Fla. Stat. § 784.045(1)(a) (1991). An individual commits battery if he “1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to an individual.” Fla. Stat. § 784.03(1)(a) (1991). The third statute mentioned in Garcia–Figueroa's judgment, Florida Statute § 775.0875, makes it a third-degree felony for a person to “without authorization, take[ ] a firearm from a law enforcement officer lawfully engaged in law enforcement duties.” Fla. Stat. § 775.0875(1) (1991). Finally, § 777.04 defines criminal attempt as “any act toward the commission” of an offense. Fla. Stat. § 777.04(1) (1991).

We first examine whether this prior conviction has physical force as an element of the offense. “This court employs a ‘categorical approach’ in determining whether an offense qualifies as a COV under § 2L1.2.” United States v. Dominguez, 479 F.3d 345, 347 (5th Cir.2007). That is, the court “examine[s] the elements of the offense, rather than the facts underlying the conviction or the defendant's actual conduct.” Id. In this context, “an element is ‘a constituent part of a claim that must be proved for the claim to succeed.’ ” United States v. Vargas–Duran, 356 F.3d 598, 605 (5th Cir.2004) (en banc) (quoting Black's Law Dictionary 538 (7th ed.1999)). “If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element—implicit or explicit—of the crime.” Id. In the case where a statute has a series of disjunctive elements, “a court may look to the indictment or jury instructions, for the limited purpose of determining which in a series of disjunctive elements a defendant's conviction satisfies.” Dominguez, 479 F.3d at 347 (quoting Calderon–Pena, 383 F.3d at 258) (emphasis in original) (internal quotation marks omitted); see also Descamps v. United States, ...