United States v. Torres-Jaime

• Decision Date: 21 April 2016
• Docket Number: No. 15–40208.,15–40208.
• Citation: 821 F.3d 577
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Guadalupe TORRES–JAIME, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

821 F.3d 577

UNITED STATES of America, Plaintiff–Appellee

v.Guadalupe TORRES–JAIME, Defendant–Appellant.

No. 15–40208.

United States Court of Appeals, Fifth Circuit.

April 21, 2016.

John Richard Berry, Asst. U.S. Atty., Renata Ann Gowie, Asst. U.S. Atty., U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Laura Fletcher Leavitt, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before CLEMENT, GRAVES, and COSTA, Circuit Judges.

JAMES E. GRAVES, JR.

, Circuit Judge:

Guadalupe Torres–Jaime (“Torres–Jaime”) challenges the district court's sixteen-level “crime of violence” sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

based on his prior Georgia aggravated assault conviction. Torres–Jaime urges us to find—in direct contrast to Fifth Circuit decisions holding otherwise—that his conviction under Georgia Code § 16–5–21(a)(2)¹ does not constitute a § 2L1.2 enumerated crime of violence. We AFFIRM the judgment of the district court.

I.

In October 2014, Guadalupe Torres–Jaime pleaded guilty, without the benefit of a written plea agreement, to a single count of illegal re-entry after deportation. The Presentence Investigation Report determined Torres–Jaime's total offense level to be twenty-one, which included a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii)

because Torres–Jaime's 2014 Georgia felony conviction for aggravated assault qualified as a “crime of violence” within § 2L1.2. His total offense level of twenty-one, when combined with his criminal history category of III, yielded a recommended guidelines range of forty-six to fifty-seven months' imprisonment.

Torres–Jaime objected to the sixteen-level enhancement, arguing that his prior Georgia aggravated assault offense was not a crime of violence under the Guidelines. The district court overruled Torres–Jaime's objection, downwardly departed, and sentenced him to thirty-two months' imprisonment. Torres–Jaime timely appealed.

II.

We consider this single issue: whether Torres–Jaime's aggravated assault conviction under Georgia Code § 16–5–21(a)(2)

constitutes an enumerated crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). We review the district court's interpretation or application of the Guidelines de novo and its factual findings for clear error. United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir.2008).

Section 2L1.2 of the Sentencing Guidelines provides that the offense level for unlawfully entering or remaining in the United States shall be increased by sixteen levels if the defendant has a prior conviction for a crime of violence. See § 2L1.2(b)(1)(A)(ii)

. The commentary to § 2L1.2 defines “crime of violence” as (1) any specific enumerated offense, including “aggravated assault” or (2) “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.” § 2L1.2, comment. (n. 1(B)(iii)).

We use different tests “when analyzing whether a particular offense amounts to a [crime of violence], and the test used depends on whether the offense is an enumerated one or has physical force as an element.” United States v. Moreno–Florean, 542 F.3d 445, 449 (5th Cir.2008)

. Because the state crime at issue is the enumerated offense of “aggravated assault,” we apply a “common sense” approach that looks to the “generic, contemporary meaning” of an offense listed in § 2L1.2 to assess whether the offense of conviction amounts to an enumerated offense. United States v. Esparza–Perez, 681 F.3d 228, 229 (5th Cir.2012). To determine this “plain, ordinary meaning,” we look to various sources including the Model Penal Code, Professor LaFave's Substantive Criminal Law treatise, modern state statutes, and legal dictionaries. United States v. Mungia–Portillo, 484 F.3d 813, 816 (5th Cir.2007) ; see

Esparza–Perez, 681 F.3d at 229. “When comparing the state conviction with the generic, contemporary meaning of the crime, we examine the elements of the statute of conviction rather than the specifics of the defendant's conduct. We look only to the particular subdivision of the statute under which the defendant was convicted.” United States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir.2006) (citation omitted).

If the defendant was convicted under a statute that is “narrower than the generic crime” or that mirrors the generic definition with only “minor variations,” the enhancement may stand. United States v. Herrera,

647 F.3d 172, 176 (5th Cir.2011). But if the statute of conviction “encompasses prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the conviction is not a crime of violence as a matter of law.” Esparza–Perez, 681 F.3d at 230 (internal quotation marks omitted).

Moreover, under the common sense approach, “if the statute of conviction contains a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction.” Moreno–Florean, 542 F.3d at 449

; see

Mungia–Portillo, 484 F.3d at 815. Qualifying records “are ‘generally limited to ... the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” United States v. Herrera–Alvarez, 753 F.3d 132, 138 (5th Cir.2014) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). If such Shepard -compliant documents cannot narrow the conviction, we determine whether the “least culpable act constituting a violation of that statute” necessarily entails the use of force or constitutes the enumerated offense. United States v. Gonzalez–Ramirez, 477 F.3d 310, 315–16 (5th Cir.2007).

The State's indictment charged Torres–Jaime with violating Georgia Code § 16–5–21

. Under Georgia law, a person commits an aggravated assault when he assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or

(3) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

Ga.Code § 16–5–21(a)

(2013). In order to commit an aggravated assault under Georgia law, a person must also commit the offense of simple assault. Guyse v. State, 286 Ga. 574, 690 S.E.2d 406, 409 (2010). A person commits a simple assault when he either “(1) [a]ttempts to commit a violent injury to the person of another; or (2) [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Ga.Code § 16–5–20(a) (2015).

Here, the indictment charges a violation of § 16–5–21

, but does not specify the particular simple assault subsection, § 16–5–20(a)(1) or § 16–5–20(a)(2), under which Torres–Jaime was convicted. Torres–Jaime asserts that the court must analyze it as an aggravated assault under subpart (a)(2) of Georgia's simple assault statute because this is the “least culpable act constituting a violation of the statute.” See

Gonzalez–Ramirez, 477 F.3d at 315–16. The Government maintains, however, that Torres–Jaime's indictment reflects the subsection language of § 16–5–20(a)(1), attempting to “commit a violent injury.”

In exploring this critical determination, we look to Torres–Jaime's Shepard -approved charging document. See Shepard, 544 U.S. at 25, 125 S.Ct. 1254

; United States v. Rodriguez, 711 F.3d 541, 549 n. 8 (5th Cir.2013). The State of Georgia indictment charged Torres–Jaime with aggravated assault and alleged that:

On August 8, 2013, Torres–Jaime “did unlawfully make an assault upon the person of Marten Tzun, driver[,] and Leidi Latin–Garcia, passenger[,] with his 2000 Chevrolet Express Van, an instrument which when used offensively against a person is likely to result in serious bodily injury by repeatedly ramming into Marten Tzun's 2006 Nissan Pathfinder with said Chevrolet Express Van....”

The judgment indicates that Torres–Jaime pleaded guilty to “[a]ggravated assault” and was given an eight-year felony sentence, which was probated.

Our analysis leads us, first, to conclude that the description of Torres–Jaime's conduct, as quoted above, unquestionably tracks the aggravated assault language of § 16–5–21(a)(2)

. Accordingly, we look only to subsection (a)(2) to determine whether the statute of conviction should be classified as a crime of violence. See

Esparza–Perez, 681 F.3d at 231. Additionally, the language of Torres–Jaime's indictment expressed above more closely tracks the language for simple assault under § 16–5–20(a)(1). To reiterate, Torres–Jaime was charged with “mak[ing] an assault upon the [victims] ... with his 2000 Chevrolet Express Van” that was “likely to result in serious bodily injury.” It is true that this qualifying record does not expressly specify the statutory subsection; but, it does demonstrate the manner in which Torres–Jaime acted, by repeatedly ramming his vehicle into that of his victims, and suggests what his mens rea may have been. Thus, it appears that his aggravated assault charge falls under subpart (1) of the statute, i.e., that Torres–Jaime “attempted to commit a violent injury to the person of another,” rather than subpart (2), which requires the commission of “an act which places another in reasonable apprehension of immediately receiving a violent injury.”

Having narrowed Torres–Jaime's conviction, we return to the question of whether Torres–Jaime's aggravated assault conviction constitutes a crime of violence for purposes of § 2L1.2(b)(1)(a)(ii)

. Notably, Torres–Jaime does not challenge any determination...