United States v. Rede–Mendez

• Citation: 680 F.3d 552
• Decision Date: 21 May 2012
• Docket Number: No. 10–2509.,10–2509.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Andres REDE–MENDEZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

680 F.3d 552

UNITED STATES of America, Plaintiff–Appellee,

v.Andres REDE–MENDEZ, Defendant–Appellant.

No. 10–2509.

United States Court of Appeals,Sixth Circuit.

Argued: Sept. 22, 2011.

Decided and Filed: May 21, 2012.

ARGUED:Lawrence J. Phelan, Haehnel & Phelan, Grand Rapids, Michigan, for Appellant. John F. Salan, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF:Lawrence J. Phelan, Haehnel & Phelan, Grand Rapids, Michigan, for Appellant. John F. Salan, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MOORE, GRIFFIN, and WHITE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which WHITE, J., joined. GRIFFIN, J. (pp. 560–68), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant–Appellant Andres Rede–Mendez appeals his sentence of thirty-six months of imprisonment for reentering the United States after having been removed following a conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2). Rede–Mendez challenges the district court's use of a sixteen-level enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”) Manual § 2L1.2, contending that his prior conviction for aggravated assault (deadly weapon) under New Mexico law did not constitute a crime of violence meriting the enhancement. Because aggravated assault under New Mexico law is not categorically a crime of violence and the available Shepard documents do not reveal what version of the offense Rede–Mendez committed, we VACATE the judgment of the district court and REMAND for resentencing consistent with this opinion.

I. BACKGROUND

On April 14, 2010, Andres Rede–Mendez was arrested in Berrien County, Michigan for operating under the influence and driving without a license. In a subsequent interview with Immigration and Customs Enforcement agents, Rede–Mendez admitted that he had reentered the United States without permission in 2007 after having been removed to Mexico in 2003. The 2003 removal followed a conviction in New Mexico state court for aggravated assault (deadly weapon) in violation of New Mexico Statute § 30–3–2(A). Rede–Mendez was indicted on one count of reentering the United States after having been removed following a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).¹ He pleaded guilty on August 17, 2010.

The Presentence Investigation Report (“PSR”) utilized U.S.S.G. § 2L1.2, which sets a base offense level of eight for the crime of Unlawfully Entering or Remaining in the United States and provides for a sixteen-level enhancement if the defendant “previously was deported ... after a conviction for a felony that is ... a crime of violence,” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Concluding that Rede–Mendez's aggravated-assault conviction constituted a crime of violence, the PSR applied the sixteen-level increase. The PSR subtracted three levels for Rede–Mendez's acceptance of responsibility. With a criminal history category of IV and an offense level of twenty-one, the recommended guidelines range was 57–71 months of imprisonment.

Rede–Mendez objected to the report, arguing that the aggravated-assault conviction was not a crime of violence. The district court overruled Rede–Mendez's objections and applied the enhancement, concluding that the New Mexico statute's inclusion of the use of a deadly weapon as an aggravating factor meant that the crime fell within the generic definition of aggravated assault and had the use or threatened use of physical force as an element. The court also departed downward one criminal history level, however, which reduced the guidelines range to 46–57 months of imprisonment. Reasoning that Rede–Mendez's offense was a relatively minor crime of violence compared to other crimes that also bear that designation and that, as a deportable alien, he would not be able to take advantage of certain rehabilitative programs while confined, the district court imposed a below-guidelines sentence of 36 months of imprisonment.

Rede–Mendez filed a timely notice of appeal, alleging that his sentence was procedurally unreasonable due to the sixteen-level enhancement for a prior felony crime of violence.

II. ANALYSIS

A. Crime of Violence

This case again requires us to determine whether a particular criminal offense triggers an enhanced sentence by qualifying as a crime of violence, by now a common but no less difficult task. We review de novo a district court's conclusion that a crime constitutes a crime of violence for sentencing purposes. United States v. Soto–Sanchez, 623 F.3d 317, 319 (6th Cir.2010).

The Application Notes to U.S.S.G. § 2L1.2 define “crime of violence” as certain enumerated offenses—including “aggravated assault”—and “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).² Although we are bound by a state court's interpretation of state criminal law, including the elements of a crime, the ultimate issue of whether a crime is a crime of violence is a question of federal law. United States v. Rodriguez, 664 F.3d 1032, 1037 (6th Cir.2011) (citing Johnson v. United States, –––U.S. ––––, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010)).

In determining the nature of a prior conviction, we apply a “categorical” approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction. Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011) (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)); Soto–Sanchez, 623 F.3d at 320–21. Nor does a specific offense automatically qualify as a crime of violence just because it has the same name as one of the enumerated offenses. Taylor v. United States, 495 U.S. 575, 588–89, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Rather, the offense for which the defendant was convicted must fall within the generic definition of that crime, which is found by surveying how the crime is described across jurisdictions, as well as consulting sources such as the Model Penal Code. Id. at 598 & n. 8, 110 S.Ct. 2143;United States v. McFalls, 592 F.3d 707, 716–17 (6th Cir.2010).

If a state criminal statute could be violated in a way that would constitute a crime of violence and in a way that would not, we look beyond the statutory language and examine certain state-court documents (the “Shepard documents”) to determine whether the conviction necessarily depended on the commission of a crime of violence. United States v. McMurray, 653 F.3d 367, 372 (6th Cir.2011) (quoting United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010)); see also Shepard v. United States, 544 U.S. 13, 16–17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). When the prior conviction resulted from a guilty plea, we look to documents that identify what facts the defendant “ ‘necessarily admitted’ ” by pleading guilty. United States v. Medina–Almaguer, 559 F.3d 420, 423 (6th Cir.2009) (quoting Shepard, 544 U.S. at 16, 125 S.Ct. 1254). Such documents can include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented,” Shepard, 544 U.S. at 16, 125 S.Ct. 1254; we do not, by contrast, consider police reports or complaint applications, id. This approach ensures that sentencing hearings do not become collateral trials. Id. at 23, 125 S.Ct. 1254.

B. New Mexico Aggravated Assault—Categorical Analysis1. Enumerated–Offense Prong

In New Mexico, aggravated assault (deadly weapon) is defined as “unlawfully assaulting or striking at another with a deadly weapon.” N.M. Stat. § 30–3–2(A). Assault is in turn defined as “(A) an attempt to commit a battery upon the person of another; (B) any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or (C) the use of insulting language toward another impugning his honor, delicacy or reputation.” Id. § 30–3–1.

Under the Model Penal Code, a defendant commits aggravated assault if he or she

(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, or

(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon[.]

Model Penal Code § 211.1(2). We have recognized the Model Penal Code definition of aggravated assault as the generic definition for the purpose of deciding whether a crime with that label is a crime of violence, at least in states which have merged the crimes of assault and battery. McFalls, 592 F.3d at 717. Professor LaFave likewise explains that, in jurisdictions like New Mexico that retain a distinct crime of assault in which the fear of injury is sufficient for conviction, “there must be an actual intention to cause apprehension.” 2 Wayne R. LaFave, Substantive Criminal Law § 16.3(b) (2d ed. 2003).

As the government acknowledges, New Mexico's definition of aggravated assault “is broader than the Model Penal Code based definition.” United States Rule 28(j) Letter of Sept. 20, 2011. The New Mexico version of aggravated assault differs from the generic version most significantly in the mens rea it attaches to the element of bodily injury or fear of injury. Unlike the Model Penal Code or LaFave definitions, the New Mexico statute does not require specific intent to injure or to frighten the victim. See, e.g., State v. Manus, 93 N.M. 95, 597 P.2d 280, 284 (1979), overruled on other grounds, Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982); State v. Morales, 132 N.M. 146, 45 P.3d 406, 414–15 (2002). Instead, aggravated assault in New Mexico requires general criminal intent, which consists of ...