United States v. Selvan-Selvan
| Decision Date | 04 September 2015 |
| Docket Number | No. 4:14-CR-79-D,4:14-CR-79-D |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | UNITED STATES OF AMERICA v. JORGE LUIS SELVAN-SELVAN, Defendant. |
On February 9, 2015, Jorge Luis Selvan-Selvan ("Selvan-Selvan" or "defendant") pleaded guilty to one count of illegal reentry of aremoved alien in violation of 8 U.S.C. § 1326 [D.E. 19]. On September 1, 2015, the court sentenced Selvan-Selvan to 37 months' imprisonment. At the sentencing hearing, defendant objected to the United States Probation Office's conclusion that 8 U.S.C. § 1326(b)(1), with a ten-year statutory maximum, applied to Selvan-Selvan, rather than the two-year statutory maximum under 8 U.S.C. § 1326(a). See PSR [D.E. 27] 1, 9, 12. The objection concerns whether Selvan-Selvan qualifies as an "alien . . . whose removal was subsequent to a conviction for commission of three or more misdemeanors involving . . . crimes against the person." 8 U.S.C. § 1326(b)(1). Selvan-Selvan also objected to a four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(E). See PSR 9, 13-14. That objection concerns whether Selvan-Selvan had "three or more convictions for misdemeanors that are crimes of violence." U.S.S.G. § 2L1.2(b)(1)(E).
Before Selvan-Selvan's most recent removal from the United States, he sustained misdemeanor convictions in North Carolina for child abuse, simple assault, and assault on a female. PSR ¶¶ 14, 17, 18; cf. Indictment [D.E. 14] 2 (identifying three qualifying misdemeanor convictions under section 1326(b)(1) as child abuse on December 12, 2011, simple assault on November 22,2013, and assault on a female on November 22, 2013). As announced in open court, the court concludes that the three misdemeanor convictions identified in the indictment qualify as "misdemeanors involving . . . crimes against the person" under 8 U.S.C. § 1326(b)(1), but do not qualify as "crimes of violence" under U.S.S.G. § 2L1.2(b)(1)(E). Accordingly, the court overrules Selvan-Selvan's objection concerning the statutory maximum under 8 U.S.C. § 1326, but sustains Selvan-Selvan's objection concerning a four-level enhancement under U.S.S.G. § 2L1.2(b)(1)(E). The court incorporates the statements it made in open court on September 1, 2015, and further explains its reasoning in this order.
In 1994, Congress imposed an increased statutory maximum of ten years on "any alien . . . whose removal was subsequent to a conviction for commissions of three or more misdemeanors involving . . . crimes against the person." Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 2023 (); cf. 8 U.S.C. § 1326(b)(1). Congress did not define "crimes against the person," and the parties dispute what it means.
"In interpreting a statute, 'a court should always turn first to one, cardinal canon [of construction] before all others': the plain meaning rule." Ayes v. U.S. Dep't of Veterans Affairs, 473 F.3d 104, 108 (4th Cir. 2006) (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992)). In applying the plain meaning rule, courts must "consider the context in which the statutory words are used because [courts] do not construe statutory phrases in isolation; we read statutes as a whole." Id. (quotation and alteration omitted). However, "[t]he [construction] inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quotation omitted); see Ayes, 473 F.3d at 108.
Absent a statutory definition, the term "crimes against the person" is presumed to have its common-law meaning. See, e.g., United States v. Castleman, 134 S. Ct. 1405, 1410 (2014); Taylor v. United States, 495 U.S. 575, 592-93 (1990); Morissette v. United States, 342 U.S. 246, 263 (1952); United States v. Treio-Galvan, 304 F.3d 406, 406-07, 407 n.1 (5th Cir. 2002). When Congress amended section 1326(b) in 1994, the then-current edition of Black's Law Dictionary did not define "crimes against the person." See Crime, Black's Law Dictionary (6th ed. 1990). The Sixth Edition of Black's Law Dictionary noted, however, under the definition of "offense," that "[c]riminal offenses may be classified into general categories as felonies and misdemeanors and as offenses against the person (e.g. murder, manslaughter), against habitation and occupancy (e.g. burglary, arson), against property (e.g. larceny), against morality and decency (e.g. adultery), against public peace, against government (e.g. treason)." See Offense, Black's Law Dictionary (6th ed. 1990). In 1999, Black's Law Dictionary defined "crimes against persons" as "[a] category of criminal offenses in which the perpetrator uses or threatens to use force" and included a list of nonexhaustive examples of "murder, rape, aggravated assault, and robbery." Crimes Against Persons, Black's Law Dictionary (7th ed. 1999). The 1999 definition of "crimes against persons" also cross-references to the term "offense against the person," which is defined as "[a] crime against the body of another human being" and notes that "[t]he common-law offenses against the person were murder, manslaughter, mayhem, rape, assault, battery, robbery, false imprisonment, abortion, seduction, kidnapping, and abduction." Offense Against the Person, Black's Law Dictionary (7th ed. 1999); see also 4 William Blackstone, Commentaries on the Laws of England 205-19 (1st American ed. 1772) (reprint 1992) (listing "offenses against the persons of individuals" as murder, mayhem, forcible abduction and marriage, rape, sodomy, assault, battery, wounding, false imprisonment, and kidnapping).
The parties dispute whether, in 1994, Congress intended the phrase "crimes against the person" in 8 U.S.C. § 1326(b)(1) to include child abuse, simple assault, and assault on a female. Cf. United States v. Miranda-Garcia, 427 F. App'x 296, 297-98 (5th Cir. 2011) (per curiam) (unpublished) (); Trejo-Galvan, 304 F.3d at 408 (); see also United States v. Cox, 934 F.2d 1114, 1124 (10th Cir. 1991) (); Kenny v. Se. Pa. Transp. Auth., 581 F.2d 351, 355 (3d Cir. 1978) (); Doe v. Montgomery Mall Ltd. P'ship, 962 F. Supp. 58, 60 (D. Md. 1997) (); Courtney v. Remler, 566 F. Supp. 1225, 1227 (D.S.C. 1983) (); United States v. Goins, 39 C.M.R. 822, 823 (1968) (). Specifically, the parties dispute whether Selvan-Selvan's three misdemeanor convictions for child abuse, simple assault, and assault on a female are "crimes against the person," and therefore subject him to the ten-year statutory maximum under 8 U.S.C. § 1326(b)(1). See PSR ¶¶ 14, 17, 18.1
In determining whether a past conviction qualifies for a statutory enhancement based on a "generic" crime, courts generally apply the categorical approach. See Castleman, 134 S. Ct. at 1413; Descamps v. United States, 133 S. Ct. 2276, 2281 (2012). Under the categorical approach, courts "look[] only to the fact of conviction and the statutory definition of the prior offense." United States v. Montes-Flores, 736 F.3d 357, 364 (4th Cir. 2013) (quotation omitted); see, e.g., Castleman, 134 S. Ct. at 1413-14; Taylor, 495 U.S. at 599-602; United States v. Gomez, 690 F.3d 194, 197-98 (4th Cir. 2012); United States v. Baxter, 642 F.3d 475, 476 (4th Cir. 2011). When "a prior conviction is for violating a so-called 'divisible statute,'" "[t]hat kind of statute [that] sets out one or more elements of the offense in the alternative," courts apply the modified categorical approach to determine which set of alternative elements covered the defendant's prior conviction. Descamps, 133 S. Ct. at 2281, 2284-85; see, e.g., Castleman, 134 S. Ct. at 1414; United States v. Vinson, No. 14-4078, 2015 WL 4430889, at *9 n.12 (4th Cir. July 21, 2015); Montes-Flores, 736 F.3d at 364-65; United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th Cir. 2013). Under the modified categorical approach, the court may examine "charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms" to determine "which statutory phrase was the basis for the conviction." Johnson v. United States ("Johnson I"), 559 U.S. 133, 144 (2010); see Castleman, 134 S. Ct. at 1413-15; Shepard v. United States, 544 U.S. 13, 26 (2005); Montes-Flores, 736 F.3d at 365; United States v. Hamilton, 480 F. App'x 217, 219 (4th Cir. 2012) (per curiam) (unpublished). "This examination . . . is for the sole purpose of determining which part of the statute the defendant violated." Gomez, 690 F.3d at 198.
Selvan-Selvan's relevant misdemeanor convictions are for child abuse, simple assault, and assault on a female. PSR ¶¶ 14, 17, 18. Although North Carolina provides criminal penalties bystatute, see N.C. Gen. Stat. § 14-33, the elements of assault are defined by common law.2 A criminal assault in North Carolina is "an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm." State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967) (quotation omitted); see State v. Britt, 270 N.C. 416, 418, 154 S.E.2d 519,...
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