United States v. Martinez, 13-50788
| Decision Date | 15 December 2014 |
| Docket Number | No. 13-50788,13-50788 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee v. OSCAR RENE MARTINEZ, Defendant - Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeal from the United States District Court for the Western District of Texas
Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
*
Defendant-Appellant Oscar Rene Martinez ("Martinez") appeals his sentence of 41 months of imprisonment based on his conviction for unlawful reentry into the United States in violation of 8 U.S.C. § 1326. Martinez argues that the district court committed plain error in applying a 16-level enhancement pursuant to United States Sentencing Guidelines Manual ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii) for Martinez's alleged commission of a "crime of violence" based on his prior conviction under New Jersey law for fourthdegree lewdness, N.J. State. Ann. § 2C:14-4b(1). For the following reasons, we VACATE Martinez's sentence and REMAND for RESENTENCING.
In 2013, Martinez pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326 without the benefit of a plea agreement. The presentence investigation report ("PSR") calculated a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a). It then recommended adding a 16-level increase under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on its determination that Martinez's New Jersey lewdness conviction qualified as a "crime of violence." Finally, the PSR recommended subtracting three levels for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b), resulting in a total offense level of twenty-one. This total offense level, coupled with a criminal history category of III, resulted in a recommended range of imprisonment of 46 to 57 months.
At sentencing, Martinez argued that his criminal history category should be adjusted downward because it was premised in part on a 2010 weapons possession offense, which arose from an incident that had escalated as a result of Martinez's inability to understand English. Based on this explanation, the district court adjusted Martinez's criminal history category from III to II.
In addition, Martinez objected to the 16-level crime of violence enhancement recommended in the PSR. That objection, however, was made off-the-record and the specific basis of Martinez's objection is therefore unclear. When the parties went back on the record, Martinez's counsel stated that a petition for writ of certiorari had been filed in the Supreme Court regarding a prior en banc case of this Court, United States v. Rodriguez, 711 F.3d 541 (5th Cir.) (en banc), cert denied, 134 S. Ct. 512 (2013) and that "assuming the Supreme Court does address that, we would object in hope of preserving thatobjection for future relief." No further details regarding the grounds of Martinez's objection were provided.
In resolving Martinez's objection, the district court stated, "the 16-level increase . . . will stand for right now . . . unless the Supreme Court rules otherwise." The district court then calculated Martinez's Guidelines range as falling between 41 to 51 months and sentenced Martinez to the lowest term of imprisonment within that range. This appeal followed.
Ordinarily, this Court reviews "the district court's application and interpretation of the sentencing guidelines de novo and its factual findings for clear error." United States v. Gonzales-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008). Under this standard, the issue of whether the district court properly characterized a prior criminal conviction as a "crime of violence" under the Sentencing Guidelines presents a legal question subject to de novo review. Rodriguez, 711 F.3d at 548; United States v. Olalde-Hernandez, 630 F.3d 372, 373 (5th Cir. 2011). However, whereas here a criminal "defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited," and the Court reviews for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). The parties agree that plain error review is appropriate in this case.
Under plain error review, this Court may reverse a trial court's decision if the following requirements are met: "(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights." United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012) (per curiam) (internal quotations omitted); accord United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). If these three elements are satisfied, the Court may exercise its discretion to remedy the error if it "seriously affects the fairness,integrity, or public reputation of judicial proceedings." Medina-Torres, 703 F.3d at 774 (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Applying the first prong of the plain error analysis, we first determine whether there was an error. A defendant convicted of illegal reentry is subject to a substantial Guidelines enhancement if he was convicted of a "crime of violence" prior to his deportation. Rodriguez, 711. F.3d at 548 (citing U.S.S.G. § 2L1.2(b)(1)(A)(ii)); United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir. 2005). The application notes to § 2L1.2 of the Guidelines defines "crime of violence" by reference to a list of enumerated generic offenses, which includes amongst them "sexual abuse of a minor." U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n. 1(B)(iii). This appeal concerns whether Martinez's conviction for fourth degree lewdness fits within the definition of "sexual abuse of a minor."
To determine whether a defendant's prior conviction under state law qualifies as a crime of violence under the Guidelines, we use the categorical approach articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). Rodriguez, 711. F.3d at 549; Gonzales-Terrazas, 529 F.3d at 296-97. Under this approach, our analysis is grounded in the statute of conviction "not the defendant's underlying conduct." United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc) (per curiam). "Because we look to the statute of conviction rather than the facts of the crime, 'we must presume that the conviction rested upon nothing more than the least of the acts criminalized.'" United States v. Amaya, 576 F. App'x 416, 419 (5th Cir. 2014) (per curiam) (quoting Moncrieffe v. Holder, ___ U.S. ___, 133 S.Ct. 1678, 1684 (2013)); see also United States v. Carrasco-Tercero, 745 F.3d 192, 198 (5th Cir. 2014) ().
Pursuant to this Court's en banc decision in United States v. Rodriguez, where the Guidelines enhancement turns on the meaning of an offense category that is not defined at common law, as is the case here, we "determine[] the 'generic, contemporary meaning'" of the triggering offense for purposes of the analysis. Rodriguez, 711. F.3d at 552. In making this determination, we employ a "plain-language approach, relying on the common meaning of terms as stated in legal and other well-accepted dictionaries." Id. at 550, 552; see also Izaguirre-Flores, 405 F.3d at 275; United States v. Zavala-Sustaita, 214 F.3d 601, 604-05 (5th Cir. 2000). Once we determine the meaning of the relevant offense category, we "look to the elements of the state statute of conviction and evaluate whether those elements comport" with the generic meaning of the offense. Rodriguez, 711 F.3d at 552-53. "If the state definition . . . is broader than the generic definition [of the offense category], a conviction under that state's law cannot serve as a predicate for the crime of violence enhancement." United States v. Garcia-Figueroa, 753 F.3d 179, 187 (5th Cir. 2014) (internal quotations omitted).
"To demonstrate that the state definition is broader than the generic definition [of the offense category], the defendant must show more than a 'mere theoretical possibility' that the statute of conviction criminalizes conduct that does not fall within" the meaning of the Guidelines offense. Id. (internal quotations omitted). Rather, pursuant to the Supreme Court's decision in Gonzales v. Duenas-Alvarez a defendant must show a "realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of [the] crime." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). "To show a realistic probability, an offender must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special manner for which he argues." United States v. Teran-Salas, 767 F.3d 453, 460 (5th Cir. 2014) (alterations and internal quotations omitted); seealso United States v. Ortiz-Gomez, 562 F.3d 683, 687 (5th Cir. 2009); United States v. Moreno-Florean, 542 F.3d 445, 456 (5th Cir. 2008).
Martinez's lewdness conviction was the result of his plea of guilty to N.J. Stat. Ann. § 2C:14-4b(1), which provides:
b. A person commits a crime of the fourth degree if:
(1) He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child.
He argues that this statute does not qualify as a crime of violence because it criminalizes conduct that does not fall within the generic meaning of "sexual abuse of a minor." Specifically, Martinez contends that the generic, contemporary meaning of the term "abuse," requires a minor to be actually, or at least constructively, present for the lewd act and to experience harm. According to Martinez, the statute under which he was convicted criminalizes conduct that falls outside this definition. We agree.
We have repeatedly interpreted the term "abu...
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