United States v. Quijada, No. 04-2201 (Fed. 10th Cir. 8/31/2005), No. 04-2201.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtWade Brorby
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee v. PEDRO QUIJADA, Defendant-Appellant.
Decision Date31 August 2005
Docket NumberNo. 04-2201.

Page 1

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
PEDRO QUIJADA, Defendant-Appellant.
No. 04-2201.
United States Court of Appeals, Tenth Circuit.
August 31, 2005.

(D.N.M.), (D.Ct. No. CR-04-516 JB).

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

Laura Fashing, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and HENRY, Circuit Judge.

ORDER AND JUDGMENT1

WADE BRORBY, United States Circuit Judge.


Appellant Pedro Quijada pled guilty to one count of being found in the United States after deportation following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). He appeals the enhancement of his sentence based on his prior conviction for assault and battery, which he contends the district court improperly characterized as a crime of violence, in violation of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.

I. Background

Prior to Mr. Quijada's plea to the federal charge against him, the district court granted his motion for a "pre-plea" presentence report for the purpose of determining Mr. Quijada's prior criminal record and the possible sentence he might face. A federal probation officer prepared the presentence report, in which he recommended a sixteen-level enhancement under United States Sentencing Commission, Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A), based on Mr. Quijada's prior conviction for a crime of violence. Specifically, the presentence report stated that on July 1, 1998, Mr. Quijada was convicted in Massachusetts of two counts of assault and battery after his girlfriend, Patricia, reported he grabbed her by the throat and pushed her into a wall and elbowed her twelve-year-old daughter, Alissa, hitting her in the upper part of her body. (Hereinafter "prior convictions.") The criminal history portion of the presentence report also included other prior convictions, including a 1993 assault and battery with a dangerous weapon conviction.

After completion of the presentence report, Mr. Quijada entered into a plea agreement admitting the government's allegations, including that he had been convicted in 1998 in Massachusetts for two counts of assault and battery and that those convictions were for aggravated felonies. Mr. Quijada then pled guilty to one count of being found in the United States after deportation following an aggravated felony conviction. The probation officer revised the presentence report to reflect both Mr. Quijada's guilty plea and the government's recommendation he receive a three-level reduction for acceptance of responsibility. The probation officer then calculated Mr. Quijada's total offense level at 21 and his criminal history category at III, for a resulting Guidelines range of forty-six to fifty-seven months imprisonment. Other than an unsuccessful request for a downward departure, Mr. Quijada did not object to the factual allegations or Guidelines calculations in either the pre-plea or the revised presentence report. In opposing Mr. Quijada's request for a downward departure, the government referenced, and ultimately submitted, the 1998 Massachusetts complaint against Mr. Quijada and the judgment of conviction, which showed Mr. Quijada was charged with and pled guilty to two offenses entitled "Assault and Battery c. 265 s. 13A." The complaint also stated he "did assault and beat Patricia Evans, in violation of [General Laws] c. 265, s. 13A," and "did assault and beat Alissa Evans, in violation of [General Laws] c. 265, s. 13A."

Prior to sentencing, the United States Supreme Court decided Blakely. At the sentencing hearing, the district court asked Mr. Quijada and his counsel if they had any factual objections, to which they responded, "no." In addition, Mr. Quijada conceded that an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) was warranted, based on his admission at the plea hearing to the aggravated felony status of the 1998 Massachusetts assault and battery convictions.1 However, he argued an additional eight-level enhancement under § 2L1.2(b)(1)(A) would violate Blakely because a judge, not a jury, was determining that the assault and battery convictions constituted "crimes of violence." The district court agreed, thereby reducing his offense level from 21 to 13, for a total Guidelines sentencing range of eighteen to twenty-four months imprisonment. The district court then sentenced him to twenty-four months imprisonment and three years unsupervised release. However, in so doing, the district court announced two alternative sentences, stating that if the Guidelines were found unconstitutional in their entirety, on remand it would impose a sentence of forty-six months imprisonment, and if it was incorrect in its application of Blakely, it would determine that the applicable Guidelines range was forty-six to fifty-seven months and impose a forty-six-month sentence.

The government filed a timely motion to correct the sentence under Federal Rule of Criminal Procedure 35(a) based on this court's decision in United States v. Cooper, which was entered on the same day as Mr. Quijada's sentencing hearing and which generally indicated that facts of a prior conviction used to increase a sentence need not be submitted to a jury because prior convictions are excepted from the rule announced in Blakely. 375 F.3d 1041, 1053 n.3 (10th Cir.), cert. denied, 125 S. Ct. 634 (2004). After Mr. Quijada opposed the government's motion, the district court held a hearing and determined the government's motion was proper under Rule 35 because it represented a legal question regarding a sentencing error. Based on our holding in Cooper, the unobjected-to facts in the presentence report, and the documents relating to Mr. Quijada's July 1998 convictions, it made a judicial finding that "Mr. Quijada committed a crime of violence for which a 16-level enhancement is warranted." It then reinstated the previously calculated Guidelines range of forty-six to fifty-seven months imprisonment and sentenced him to forty-six, rather than twenty-four, months in prison. It also explained it would, on remand, reinstate the alternative sentence it previously announced.

On appeal, Mr. Quijada continues to argue a jury, and not the district court, should have determined whether his 1998 convictions were crimes of violence. For the first time on appeal, he also asserts his prior 1998 convictions for assault and battery are not crimes of violence because an offense committed under Massachusetts General Laws, chapter 265, § 13A includes offenses, as defined under common law, as those "committed by an intentional and unjustified use of force upon another person, however slight." In support of this new claim, Mr. Quijada contends the district court improperly characterized the two 1998 convictions as crimes of violence without considering the relevant Massachusetts assault and battery statute and, instead, relying on the underlying facts cited in the presentence report. He argues the district court should have strictly applied the requisite categorical approach and looked only at the statutory elements, which demonstrate a conviction for assault and battery may include a nonviolent, slight touch, which he contends cannot be characterized as a crime of violence under U.S.S.G. § 2L1.2(b)(1). In sum, his argument centers on the degree or amount of force necessary to constitute a crime of violence, which he contends must be violent force. While Mr. Quijada admits he did not raise this issue before the district court, he nevertheless argues we should disregard analyzing his argument under a plain error analysis and, instead, exercise our discretion to review de novo his unpreserved issue. Alternatively, Mr. Quijada claims the district court erred by granting the government's Rule 35 motion to correct the initial sentence. He also complains the district court erred in mandatorily applying the Sentencing Guidelines in determining the length of his sentence. In countering Mr. Quijada's claims, the government asserts he waived his categorical argument by not objecting to the facts in the presentence report, or, alternatively, because Mr. Quijada failed to raise his argument at the district court level, we must review it under a plain error analysis. It also opposes Mr. Quijada's Rule 35 and mandatory sentencing claims.

II. Discussion
A. Prior Convictions

Since the time Mr. Quijada filed his appeal, the Supreme Court issued United States v. Booker, which applies its ruling in Blakely to the Federal Sentencing Guidelines. 543 U.S. ___, ___, 125 S. Ct. 738, 755-76 (2005). In advancing their positions, the parties discussed both Booker and our subsequent decision in United States v. Moore, 401 F.3d 1220 (10th Cir. 2005). In Moore, we held that under Booker the government is not required to charge in an indictment or prove to a jury either: 1) the existence of prior convictions, or 2) their classification as "violent felonies." Id. at 1221, 1224-25 & n.2.

With respect to the former, concerning the existence of prior convictions, Booker patently reaffirms Supreme Court precedent that a prior conviction is an exception to factual jury submissions by stating, "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 543 U.S. at ___, 125 S. Ct. at 756 (emphasis added). Thus, it is clear the government did not need to charge the "fact" of Mr. Quijada's prior convictions in the indictment or submit it to a jury. See Moore,...

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