United States v. Gonzalez-Aparicio

• Decision Date: 16 November 2011
• Docket Number: No. 09–10447.,09–10447.
• Citation: 663 F.3d 419,11 Cal. Daily Op. Serv. 13905,2011 Daily Journal D.A.R. 16616
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Isaias GONZALEZ–APARICIO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 13,905

2011 Daily Journal D.A.R. 16,616

663 F.3d 419

UNITED STATES of America, Plaintiff–Appellee,

v.Isaias GONZALEZ–APARICIO, Defendant–Appellant.

No. 09–10447.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2010.Filed June 8, 2011.Amended Nov. 16, 2011.

Robert Lally Miskell (argued), Assistant U.S. Attorney, Tucson, AZ, for the appellee.

Jeffrey Glenn Buchella (argued), CJA, Tucson, AZ, for the appellant.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:09–cr–00685–CKJ–DTF–1.Before: ROBERT E. COWEN,^* A. WALLACE TASHIMA and BARRY G. SILVERMAN, Circuit Judges.Opinion by Judge COWEN; Dissent by Judge TASHIMA.

OPINION

COWEN, Circuit Judge:

Isaias Gonzalez–Aparicio appeals from the sentence imposed by the District Court following his guilty plea to one count of attempted reentry after deportation. Reviewing for plain error, we will affirm.

I.

Gonzalez–Aparicio was born in Mexico on January 24, 1973. According to the presentence investigation report (“PSR”) dated September 23, 2009, he moved to the United States with his family when he was still a teenager.

In “Part B—Defendants' Criminal History,” the PSR stated that Gonzalez–Aparicio was arrested on August 18, 1999, at age 26, and then convicted on the following charge: “Count 1—Sexual Conduct with a Minor (felony) Arizona Revised Statutes § 13–1405, Maricopa County Superior Court, Phoenix, CR19992981.” (PSR ¶ 21.) He originally received the following sentence: “02/02/2000—10 years probation, 1 year jail as condition of probation (credit for 167 days time served).” ( Id.) The sentence was then amended: “02/24/2000—Sentence amended; condition imposing 1 year in jail vacated and replaced by condition imposing 167 days in jail.” ( Id.) Gonzalez–Aparicio was deported to Mexico on February 23, 2000.

The PSR went on to state that:

The defendant was represented by counsel. Court records show he pleaded guilty to Count 1 of an indictment charging that in November 1998 he “engaged in sexual intercourse or oral sexual contact with [victim] a minor under the age of fifteen years, this refers to the first intercourse[.]” Three additional counts charging the defendant with sexual conduct with the same victim were dismissed.

Arrest reports were not received, and court documents indicate only that from November 1998 through August 1999 the defendant engaged in intercourse with the victim on at least four occasions. The defendant was released to immigration authorities and deported on February 23, 2000. As noted above, the defendant's sentence was amended the day following his deportation. A Maricopa County Adult Probation official indicated revocation proceedings will be initiated based on the defendant's commission of the instant offense.

( Id.)

Following this first deportation, Gonzalez–Aparicio reentered the United States. He was removed again in March 2009. On April 1, 2009, Border Patrol agents in Nogales, Arizona, observed Gonzalez–Aparicio crawling through a hole in the international border fence. Although he attempted to run away, he was apprehended and admitted to the agents that he was a Mexican citizen without legal authorization to be in this country. A federal grand jury indicted him for attempted illegal reentry after deportation under 8 U.S.C. § 1326 as enhanced by 8 U.S.C. § 1326(b)(2). On August 20, 2009, Gonzalez–Aparicio pled guilty.

Calculating the offense level under the Sentencing Guidelines, the PSR began with a base offense level of 8 and ultimately ended up with a total offense level of 22. Among other things, it added 16 levels “because the defendant was previously deported subsequent to a conviction for sexual conduct with a minor, the elements of which are equivalent to sexual abuse of a minor and/or statutory rape, either of which is an enumerated crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).” ( Id. ¶ 10.) The PSR also found that Gonzalez–Aparicio fell under criminal history category III. In the end, the sentencing range was 51 to 63 months, and the Probation Office recommended a sentence of 56 months.

The addendum dated September 29, 2009 indicated that the defense (unlike the government) made no objections to the PSR. However, the defense counsel did submit documentation in anticipation of the sentencing hearing, including an untranslated letter in Spanish allegedly from the victim of Gonzalez–Aparicio's prior criminal conduct.

At the sentencing hearing conducted on November 3, 2009 (with the assistance of an interpreter), the District Court initially asked Gonzalez–Aparicio's attorney whether there was any legal reason why they could not go forward with sentencing. The attorney indicated that there were none. He further noted that he had reviewed with his client “the presentence report including the recommendation section and the addendum to the report” and believed that his client adequately understood the documents. (ER24.) Gonzalez–Aparicio then indicated on the record that he was satisfied with his counsel's services, the attorney was able to answer any questions he might have had, and the attorney discussed the PSR and its recommendation with him. The District Court accordingly ordered that the “presentence report is made a part of the record” and expressly adopted its factual assertions because “the report accurately describes the offense conduct.” (ER25.) It then reviewed the PSR's Guideline calculation, stating, inter alia, that it accurately calculated a 16–level enhancement because Gonzalez–Aparicio was previously deported following “a conviction for sexual conduct with a minor as outlined in paragraph 21.” (ER26.)

The defense counsel asked for “a more realistic sentence in the neighborhood of 18 to 24 months.” (ER30.) Among other things, he stated that “the most significant felony prior we are here for involved a case of him being charged for basically statutory rape.” (ER27.) In short, he explained that Gonzalez–Aparicio had a consensual 6–month–long relationship when he was 26 with a distant cousin of his common-law wife (at a time when he was separated) who was approaching the age of 15. While the defense attorney acknowledged that the crime “sounds” horrible and dangerous, his client was convinced that his sentence was changed to time served in part because the family did not want the State of Arizona to pursue charges. ( Id.) The defense counsel added that the State often will prosecute such cases in spite of the victim's own wishes and went on to emphasize the fact that “the so-called victim” actually wrote “a touching letter asking you to consider leniency and mercy.” (ER28.)

After Gonzalez–Aparicio made a brief statement of his own, the prosecutor concurred in the Probation Office's sentencing recommendation. Among other things, the prosecutor noted that she was unable to obtain “the police reports on the statutory rape case.” (ER31.) However, she challenged her adversary's characterization of the matter, stating, inter alia, that it “wasn't a Romeo/Juliet case,” that “[h]e's 26” and “[s]he's at oldest 14,” and that it is “very difficult” for victims who are also family members and who may then be pressured by others into not pursuing charges or even writing a letter asking for leniency. (ER32)

In its final sentencing determination, the District Court took into consideration the Guideline calculations, the statutory sentencing factors, and the mitigating factors offered in support of a lesser sentence (especially with respect to Gonzalez–Aparicio's family circumstances). The District Court specifically noted that the section 13–1405 conviction described in Paragraph 21 of the PSR does not constitute an aggravated felony conviction “because the sentence was not at least one year.” ( Id.) It observed, inter alia, that “[t]here's been no objection to the guideline calculations” and that it “basically adopted what the probation department has proposed.” (ER33.) Declining “to grant a departure based on the fact that paragraph 21 is not an aggravated felony,” the District Court expressly found “that it is appropriately treated as a crime of violence, sexual conduct with a minor under 15.” ( Id.) The District Court then observed that: “We have the summary of the incident in paragraph 21. The court finds it is appropriate to continue to treat that as a crime of violence and that it is an appropriate adjudication for purposes of sentencing today of that prior conviction.” (ER33–ER34.) Ultimately, the District Court imposed a Guideline sentence (although one at the low end of the range due to the mitigating factors) of 51 months of imprisonment to be followed by 3 years of supervised release.

II.

Gonzalez–Aparicio contends that the District Court committed reversible procedural error by applying a 16–level increase to the offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).¹ This Guideline specifically provides for such an increase if the defendant was previously deported following a conviction for a “crime of violence.” The Sentencing Commission's commentary states that:

“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.U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). In turn, Ariz.Rev.Stat. § 13–1405 currently states:

§ 13–1405. Sexual conduct with a minor; classification; definition.

A. Any person commits sexual conduct...