United States v. Gomez

• Decision Date: 10 August 2012
• Docket Number: No. 12–4089.,12–4089.
• Citation: 690 F.3d 194
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mirna Del Carmen GOMEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

690 F.3d 194

UNITED STATES of America, Plaintiff–Appellee,

v.Mirna Del Carmen GOMEZ, Defendant–Appellant.

No. 12–4089.

United States Court of Appeals,Fourth Circuit.

Argued: May 15, 2012.

Decided: Aug. 10, 2012.

ARGUED: Joanna Beth Silver, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Paul Nitze, 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.

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge FLOYD wrote the majority opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

FLOYD, Circuit Judge:

Mirna Del Carmen Gomez, a citizen of El Salvador, pleaded guilty to a charge of unlawful reentry of a deported alien after an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Although she agreed with the statement of facts submitted by the government in support of her guilty plea, Gomez objected to the government's assertion that her prior conviction for child abuse under Maryland law amounted to a crime of violence for purposes of the U.S.S.G. § 2L1.2(b)(1)(A)(ii) sentencing enhancement. According to Gomez, because the relevant portion of the statute did not contain a division between forceful and nonforceful conduct, the district court could not use the modified categorical approach to determine that her prior child abuse conviction was a crime of violence.

Despite this objection, in calculating the relevant Sentencing Guidelines range, the district court employed the modified categorical approach to determine that Gomez's child abuse conviction constituted a crime of violence. For this reason, the district court added sixteen levels to Gomez's base offense level. Thereafter, the district court calculated her Guidelines range to be forty-one to fifty-one months, but made a downward variance and sentenced her to twenty-four months' imprisonment. This appeal followed. Because we find that the district court's application of the modified categorical approach to the indivisible provision at issue was in error, we vacate Gomez's sentence and remand for resentencing.

I.

On August 20, 1999, Gomez pleaded guilty in Maryland state court to one count of child abuse, in violation of Maryland Code 1957, Article 27, § 35C. At the state plea hearing, she admitted that, to punish her son, she had burned the bottoms of his feet with a candle. The state court sentenced her to eighteen months' imprisonment.

In January 2001, Gomez was deported from the United States. Sometime around December 2010, however, she reentered the United States without having sought or obtained permission to reenter. Gomez was arrested on December 16, 2010. Approximately five months later, she pleaded guilty to a charge of unlawful reentry of a deported alien after an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). She noted at the time, however, that her prior conviction for child abuse under Maryland law was not a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii), which allowed for a sixteen-level increase in her offense level if she has been convicted of a “crime of violence.”

In written memoranda and at the sentencing hearing held on February 1, 2012, the parties set forth their arguments on this issue. The government maintained that “the Maryland child abuse statute under which [Gomez] was convicted has as an element the use, attempted use, or threatened use of physical force against the person of another.” It further contended that the child abuse statute under which Gomez was convicted “actually requires physical injury rather than just the use of force that is capable of causing physical injury and therefore categorically satisfies the Supreme Court's definition of physical force.” Alternatively, the government suggested that the district court should employ the modified categorical approach. And under this approach, the government noted, “a review of the charging document and transcript of the plea colloquy makes clear that [Gomez's] conviction for child abuse was a conviction for a crime of violence pursuant to [§ 2L1.2].” As the government pointed out, “[t]he statement of facts offered during the plea colloquy states that upon her arrest [Gomez] admitted that [she] took a candle and burned the bottoms of her minor son's feet as punishment.”

In contrast, Gomez argued that her child abuse conviction was not a crime of violence. “And ... if it's not a crime of violence, it's not an aggravated felony under the facts of this case.” Moreover, according to Gomez, the district court could look no further than the elements of the Maryland child abuse statute in deciding whether her prior conviction could be found to be a crime of violence. Consequently, Gomez avowed, because the statute at issue “does not have an element of ‘violent force’ ... [it] does not constitute a ‘crime of violence’ under [§ 2L1.2].”

At the hearing's conclusion, the district court determined it appropriate to employ the modified categorical approach to decide whether Gomez's prior child abuse conviction was a crime of violence. It observed that the Maryland child abuse statute “is broad enough to encompass crimes of violence under some circumstances. And that, therefore, we can look at the permitted universe of documents to determine what kind of child abuse conviction this was.”

The district court then noted that the statement of facts to which Gomez admitted at the state plea hearing indicated that hers was a forceful child abuse conviction. Therefore, the district court concluded that “it was a crime of violence and is appropriately assigned [an] enhancement of 16 levels.” The resultant Guidelines range for Gomez was forty-one to fifty-one months' imprisonment.

The district court proceeded to determine Gomez's sentence. It observed that “[t]he [G]uidelines are advisory and the Court needs to look at all the facts and circumstances of a particular case.” It then sentenced Gomez to twenty-four months' imprisonment, stating that the sentence “is sufficient to punish Ms. Gomez and to teach her enough of a lesson that she will think more than once before being tempted to return to the United States.” Gomez subsequently filed this timely appeal.

II.

Gomez argues that the district court erred in employing the modified categorical approach to determine that her prior conviction for child abuse under Maryland law constituted a crime of violence. In so doing, according to Gomez, the district court improperly examined the particular acts that she committed to decide if those acts amounted to a crime of violence. The government asserts, however, that “the district court properly used the modified categorical approach to determine which portion of the child abuse statute was violated in [her] prior case.”

Whether the district court erred in characterizing a defendant's crime as a “crime of violence” for sentence enhancement purposes is a question of law, which we review de novo. United States v. Diaz–Ibarra, 522 F.3d 343, 347 (4th Cir.2008). “We rely on precedents evaluating whether an offense constitutes a ‘crime of violence’ under the Guidelines interchangeably with precedents evaluating whether an offense constitutes a ‘violent felony’ under the ACCA, because the two terms have been defined in a manner that is ‘substantively identical.’ ” United States v. King, 673 F.3d 274, 279 n. 3 (4th Cir.2012) (quoting United States v. Jarmon, 596 F.3d 228, 231 n.* (4th Cir.2010)).

A.

As stated earlier, U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level increase in the offense level if the defendant has been convicted of a “crime of violence.”

“Crime of violence” means 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.

Id.§ 2L1.2 cmt. n. 1(B)(iii).

“In determining whether [a] crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). When making this determination, “courts generally employ a categorical approach, under which consideration is given only to the essential elements of the offense and the fact of conviction.” United States v. Baxter, 642 F.3d 475, 476 (4th Cir.2011).

We have found it appropriate to vary this approach only “where different types of behavior satisfy an element of the offense and the proscribed behaviors constitute at least two separate crimes for ACCA purposes.” United States v. Rivers, 595 F.3d 558, 562–63 (4th Cir.2010). “Thus, only when a statute prohibits different types of behavior such that it can be construed to enumerate separate crimes can a court modify the categorical approach to determine ACCA eligibility.” Id. at 563.

Under the modified categorical approach, we “ ‘look only to the fact of conviction and the statutory definition of the prior offense,’ ” and we generally do not consider the “particular facts disclosed by the record of conviction.” Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (quoting Taylor v. United States, 495 U.S. 575, 602, 110...