United States v. Valle-Ramirez

• Decision Date: 19 November 2018
• Docket Number: No. 15-41719,15-41719
• Citation: 908 F.3d 981
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Jose Luis VALLE-RAMIREZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

908 F.3d 981

UNITED STATES of America, Plaintiff-Appellee

v.Jose Luis VALLE-RAMIREZ, Defendant-Appellant

No. 15-41719

United States Court of Appeals, Fifth Circuit.

FILED November 19, 2018

Carmen Castillo Mitchell, Paula Camille Offenhauser, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Michael Lance Herman, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.

ON REMAND FROM THE UNITED STATES SUPREME COURT

PER CURIAM

On remand, the issue before us is whether the Defendant Jose Luis Valle-Ramirez’s conviction for aggravated assault under Georgia law constitutes an aggravated felony within the meaning of 8 U.S.C. § 1326(b)(2), the statute of conviction listed on his judgment. We affirm that the relevant Georgia statute qualifies as an aggravated felony and AFFIRM the district court’s judgment reflecting Valle-Ramirez’s conviction under § 1326(b)(2).

BACKGROUND

Valle-Ramirez pled guilty to being an alien found unlawfully present in the United States after his May 2013 deportation, in violation of 8 U.S.C. § 1326(a) and (b). His presentence report (PSR) applied a 16-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2014) because of his previous Georgia felony conviction for aggravated assault, which the PSR deemed a crime of violence. The PSR further determined that Valle-Ramirez faced a statutory maximum imprisonment term of 20 years under 8 U.S.C. § 1326(b)(2) because his Georgia conviction was an aggravated felony within that statute’s meaning. Valle-Ramirez objected to the sentencing enhancement, urging that the Georgia statute of conviction is not a crime of violence. He did not, at that time, object to § 1326(b)(2) ’s applicability.

The district court overruled the objection and adopted the PSR’s findings, varied downward from the guidelines range, and imposed a 30-month sentence. The judgment listed his statute of conviction as 8 U.S.C. § 1326(b)(2).¹ Valle-Ramirez timely appealed.

On appeal, Valle-Ramirez reasserted that his Georgia aggravated assault conviction is not a crime of violence for purposes of the § 2L1.2 enhancement. Valle-Ramirez then asserted for the first time that he "is not subject to the provisions of 8 U.S.C. § 1326(b)(2)" because his Georgia conviction is not an aggravated felony—defined in relevant part as a crime of violence under 18 U.S.C. § 16. Specifically, he asserted that his Georgia conviction could not be a crime of violence under § 16(a) because the underlying statute did not have "as an element the use, attempted use, or threatened use of physical force." He also argued the unconstitutional vagueness of § 16(b).²

This court’s affirmance, see United States v. Valle-Ramirez , 677 F. App'x 187, 188 (5th Cir. 2017), was based on two cases, Torres-Jaime and Gonzalez-Longoria . Id. at 187-88. Torres-Jaime "held that a Georgia conviction for aggravated assault qualifies as a crime of violence."³ Id. at 188 (citing United States v. Torres-Jaime , 821 F.3d 577, 580-85 (5th Cir. 2016) ). Gonzalez-Longoria held that 18 U.S.C. § 16(b) was not unconstitutionally vague. Id. (citing United States v. Gonzalez-Longoria , 831 F.3d 670, 672 (5th Cir. 2016) ).

Valle-Ramirez sought certiorari in the Supreme Court, which granted the petition, vacated this court’s judgment, and remanded in light of Sessions v. Dimaya . See Valle-Ramirez v. United States , ––– U.S. ––––, 138 S.Ct. 1978, 1978, 201 L.Ed.2d 239 (2018). Dimaya held § 16(b) unconstitutionally vague, abrogating this court’s opinion in Gonzalez-Longoria . Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 1223, 200 L.Ed.2d 549 (2018).

On remand, Valle-Ramirez no longer contests his sentencing enhancement because he is no longer in prison. He does, however, contend that the Georgia conviction is not an aggravated felony under § 1326(b)(2) and asks that the judgment be altered to reflect a conviction under § 1326(b)(1) instead of § 1326(b)(2).⁴

STANDARD OF REVIEW

For errors preserved in the trial court, ordinarily, "[w]e review the district court’s characterization of a defendant’s prior conviction as a [crime of violence] de novo ." United States v. Garcia-Figueroa , 753 F.3d 179, 184 (5th Cir. 2014). To preserve an objection, "[a] party must raise a claim of error with the district court in such a manner so that the district court may correct itself and thus, obviate the need for our review." United States v. Narez-Garcia , 819 F.3d 146, 149 (5th Cir. 2016) (quotation marks omitted). Although Valle-Ramirez technically failed to challenge the applicability of § 1326(b)(2) in the district court, we need not resort to plain error review. The objection to his § 2L1.2 sentencing enhancement made the same argument about the Georgia conviction that applies to § 1326(b)(2) —that his Georgia conviction does not have as an element the use of force.

These provisions incorporate nearly identical use of force definitions. The guideline defines a crime of violence to include "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) (2008). Section 1326(b)(2) incorporates identical language. It says that an alien "whose removal was subsequent to a conviction for commission of an aggravated felony" is subject to an enhanced prison term. This statute defines "aggravated felony" to include "a crime of violence [ ]as defined in Section 16 of Title 18." 8 U.S.C. § 1101(a)(43)(F). 18 U.S.C. § 16(a) defines a crime of violence to include "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Thus, the use of force provision relevant to determining § 1326(b) ’s applicability matches the provision to which Valle-Ramirez objected in the district court regarding his sentencing enhancement.⁵

DISCUSSION

Because Dimaya held that Section 16(b) ’s residual clause cannot suffice under Section 1326(b)(2), the sole issue on appeal is whether Valle-Ramirez’s Georgia conviction qualifies as an aggravated felony because it has "as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a).

Valle-Ramirez’s Georgia aggravated assault conviction easily meets this requirement. Under Georgia law at the time of Valle-Ramirez’s offense, Georgia’s assault statute was written as follows:

(a) A person commits the offense of simple assault when he or she either:

(1) Attempts to commit a violent injury to the person of another; or

(2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

GA. CODE ANN. § 16-5-20(a) (2012). Aggravated assault occurs when one commits a simple assault:

(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) [Against] a person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

GA. CODE. ANN. § 16-5-21(a)(1)-(3) (2012). Valle-Ramirez concedes that his aggravated assault conviction can be narrowed using state court documents to an offense under § 16-5-21(a)(2) and § 16-5-20(a)(2). In other words, he committed an act with a deadly weapon, an auto, placing another in reasonable apprehension of immediately receiving a violent injury.

In response to this court’s request for supplemental briefing on remand, Valle-Ramirez argues only that his Georgia offense cannot be a crime of violence because the mens rea required to commit Georgia assault has "no requirement that the defendant intend to injure or threaten injury," whereas an act that has as an element the use of force requires such an intent. This is incorrect.

In Voisine , the Supreme Court held that the word "use" in the context of "use of force" "is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct." Voisine v. United States , ––– U.S. ––––, 136 S.Ct. 2272, 2278-79, 195 L.Ed.2d 736 (2016).⁶ This court has recognized that post- Voisine , "the mental state of recklessness may qualify as an offense that ‘has as an element the use, attempted use, or threatened use of physical force against the person of another.’ " United States v. Howell , 838 F.3d 489, 501 (5th Cir. 2016). Thus, post- Voisine , the phrase " ‘has as an element the use, attempted use, or threatened use or physical force against the person of another’ [is] indifferent to mens rea : we concern ourselves only with whether [the] predicate conduct was volitional" in contrast to purely accidental. Mendez-Henriquez , 847 F.3d at 221-22.

Georgia’s required mens rea for assault more than satisfies merely volitional conduct. At issue here, an assault occurs when one "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." GA. CODE ANN. § 16-5-20(a)(2) (2012). The Supreme Court of Georgia has explained:

[P]ursuant to the express language of (a)(2), an assault under that subsection looks to the victim’s state of mind, rather than the accused’s, to establish the elements of an assault. There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim.

Dunagan v. State , 269 Ga. 590, 502 S.E.2d 726, 730 (1998), overruling on other grounds recognized...