United States v. Villafana

• Decision Date: 05 August 2014
• Docket Number: No. 13-20251,13-20251
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee v. JUAN FLORES VILLAFANA, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
JUAN FLORES VILLAFANA, Defendant-Appellant

No. 13-20251

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 5, 2014

Appeals from the United States District Court for the Southern District of Texas
USDC No. 4:12-CR-0676-1

Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:^*

Juan Flores Villafana pled guilty without a plea agreement to illegal reentry into the United States following deportation. Pursuant to § 2L1.2(b)(1)(C) of the United States Sentencing Guidelines, the district court assessed an eight-level enhancement to Villafana's base offense level due to Villafana's having returned following an aggravated felony conviction—a 2003 guilty plea conviction in Texas for forgery of a commercial instrument. Villafana acknowledged at sentencing that his conviction involved the use of a false social security card in order to work. Villafana did not object to the

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enhancement at sentencing, but instead sought a downward variance on the basis that his offense level "overstated the seriousness of his prior conviction." Now, Villafana argues that the Texas statute under which he was convicted for possession of a forged instrument¹ does not constitute an "aggravated felony" because his offense of conviction is broader than common law forgery. For the reasons stated below, we affirm.

The government contends that Villafana has waived appellate review of the district court's enhancement of his sentence, and that, at the very least, his appeal is subject to plain error review. We need not address this issue because, for reasons that follow, we find no error, plain or otherwise.

Under the Sentencing Guidelines, a defendant convicted of illegal reentry into the United States is subject to an eight-level sentencing enhancement if he was previously removed after committing an "aggravated felony."² The term "aggravated felony" includes any "offense . . . relating to . . . forgery . . . for which the term of imprisonment is at least one year."³ Because the Guidelines do not further define "forgery" we apply a "common sense approach," and define the enumerated crime by its "generic contemporary meaning."⁴ One source this court has recognized for the generic contemporary meaning of an enumerated offense is the Model Penal Code.⁵

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Courts employ a "categorical approach" to determine whether the state offense is comparable to an offense listed in 8 U.S.C. § 1101(a)(43).⁶ "Under this approach [courts] look 'not to the facts of the particular prior case,' but instead to whether 'the state statute defining the crime of conviction' categorically fits within the 'generic' definition of a corresponding aggravated felony."⁷ "If the statute at issue is divisible, and at least one of the offenses included in the statute is not an aggravated felony [and another section constitutes an aggravated felony], the court is to apply a 'modified categorical approach."⁸ Under the modified categorical approach, we are permitted to conduct a limited inquiry into the charging documents to determine which statutory variant of the crime was committed.⁹ We can therefore review the charging document, written plea agreement, and state court judgment to determine whether the district court correctly determined that Villafana's prior conviction for misdemeanor forgery qualified as an aggravated felony for purposes of a sentence enhancement.¹⁰

Villafana agreed to plead guilty to misdemeanor forgery after the state initially charged him with the felony of Tampering with a Governmental Record. To identify this reduced charge, the state prosecutor made several

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handwritten changes to the initial Felony Bill of Information. Prior to the changes, the Bill of Information stated, in relevant part:

. . . [O]n or about April 18, 2003, [Villafana] did then and there unlawfully, with intent that it be used unlawfully, POSSESS A GOVERNMENTAL RECORD, namely a CERTIFICATE, TO WIT, A SOCIAL SECURITY CARD AND WITH THE INTENT TO DEFRAUD AND HARM ANOTHER.

Pursuant to the agreement between Villafana and the state, the prosecutor struck through certain portions of the Bill of Information so that it stated:

. . . [O]n or about April 18, 2003, [Villafana] did then and there unlawfully, with intent that it be used unlawfully, POSSESS A GOVERNMENTAL RECORD, namely a CERTIFICATE, TO WIT, A SOCIAL SECURITY CARD AND WITH THE INTENT TO DEFRAUD AND HARM ANOTHER.

The prosecutor also added a notation to the end of the document that the "State moves to reduce to the class 'A' misdemeanor of forgery." The Judgment states that Villafana was convicted of "forgery—comm instrument," a class A misdemeanor under § 32.21 of the Texas Penal Code, and sentenced to one year in prison.¹¹

Viewing the Information and Judgment together, it is clear that Villafana was convicted under subparts (a)(1)(C) and (b) of § 32.21 for (1) possession a forged writing, (2) with intent to utter it, (3) in order to defraud or harm another.¹² We are charged to determine whether these elements fit

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within the generic meaning of forgery,¹³ or fall under § 1101(a)(43)(R)'s definition of an offense...