United States v. Ramirez-Aguilar , 171 F. App'x 449 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-41150
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALEJANDRO RAMIREZ-AGUILAR
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-221-ALL
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Alejandro Ramirez-Aguilar appeals his guilty-plea conviction
and sentence for illegal reentry into the United States following
deportation subsequent to a felony conviction for an aggravated
felony. 8 U.S.C. § 1326(a)-(b) (2000). Ramirez-Aguilar was
sentenced to thirty-three months of imprisonment and a three-year
term of supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 04-41150
-2-
For the first time on appeal, Ramirez-Aguilar argues that 8
U.S.C. § 1326(b) is unconstitutional on its face and as applied
because it does not require the fact of a prior felony or
aggravated felony conviction to be charged in the indictment and
proved beyond a reasonable doubt. Ramirez-Aguilar’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Ramirez-
Aguilar contends that Almendarez-Torres was incorrectly decided
and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), we have rejected such arguments on the basis that
Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005), cert. denied, 126
S. Ct. 298 (2005). Ramirez-Aguilar properly concedes that his
argument is foreclosed in light of Almendarez-Torres and circuit
precedent, but he raises it here to preserve it for further
review.
Ramirez-Aguilar also argues for the first time on appeal
that his prior Texas conviction for Class A misdemeanor assault
was not a crime of violence for purposes of an eight-level
enhancement pursuant to U.S. SENTENCING GUIDELINES MANUAL
§ 2L1.2(b)(1)(C) (2003) [hereinafter U.S.S.G.]. Because he
failed to raise this issue in the district court, this court
reviews for plain error. United States v. Bonilla-Mungia, 422
F.3d 316, 319 (5th Cir. 2005). When determining whether a prior
No. 04-41150
-3-
conviction is a crime of violence because it has as an element
the use, attempted use, or threatened use of physical force,
district courts must employ the categorical approach established
in Taylor v. United States, 495 U.S. 575, 602 (1990). Bonilla-
Mungia, 422 F.3d at 320. “Under that approach, courts determine
the elements to which a defendant pleaded guilty by analyzing the
statutory definition of the offense, not the defendant’s
underlying conduct.” Id. (citing United States v. Calderon-Pena,
383 F.3d 254, 257 (5th Cir. 2004) (en banc), cert. denied, 543
U.S. 1076 (2005)). If a statute contains multiple, disjunctive
subsections, the court may look beyond the statute to certain
records to determine which particular statutory provision applies
to the defendant’s conviction, but “[t]hese records are generally
limited to the ‘charging document, written plea agreement,
transcript of the plea colloquy, and any explicit factual finding
by the trial judge to which the defendant assented.’” Id.
(quoting Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254,
1257 (2005)).
Ramirez-Aguilar’s prior conviction arose under either TEX.
PENAL CODE ANN. § 22.01(a)(1) or (a)(3) (Vernon 2003). A
conviction under § 22.01(a)(1) is a crime of violence sufficient
to trigger the § 2L1.2(b)(1)(C) enhancement. See United States
v. Shelton, 325 F.3d 553, 561 (5th Cir. 2003). A conviction
under § 22.01(a)(3), however, is not a crime of violence and does
not trigger the enhancement. See Gonzalez-Garcia v. Gonzales,
No. 04-41150
-4-
2006 WL 346298, at **3-4 (5th Cir. Feb. 14, 2006) (unpublished).
Unfortunately, the record does not tell us which subsection of
§ 22.01--(a)(1) or (a)(3)--applies to Ramirez-Aguilar’s
conviction. Although the presentence report (“PSR”) contains
facts pertaining to Ramirez-Aguilar’s alleged conduct in
committing the underlying offense, we are not permitted to rely
on the PSR’s characterization of Ramirez-Aguilar’s prior
conviction for enhancement purposes. Bonilla-Mungia, 422 F.3d at
320-21 (citing Garza-Lopez, 410 F.3d at 274 (“[U]nder Shepard, a
district court is not permitted to rely on a PSR’s
characterization of a defendant’s prior offense for enhancement
purposes.”)). Aside from the judgment of conviction, which does
not indicate whether Ramirez-Aguilar was convicted under
§ 22.01(a)(1) or § 22.01(a)(3), the record contains no other
documents--such as an indictment, information, plea agreement, or
transcript of the plea colloquy from Texas state court--that this
court may rely on to determine whether Ramirez-Aguilar’s
conviction constituted a crime of violence. Id. Where, as here,
we cannot identify with legal certainty under which portion of a
statute a defendant was convicted, we remand to the district
court for supplementation of the record and resentencing. See
id. (reviewing crime of violence enhancement for plain error and
remanding to the district court for supplementation of the record
and resentencing where the court could not determine “with legal
certainty which portion of the sexual battery statute [the
No. 04-41150
-5-
defendant] was convicted under”); United States v. Gonzalez-
Chavez, 432 F.3d 334, 338 (5th Cir. 2005) (“Where we cannot
identify with legal certainty under which portion of a statute a
defendant was convicted, we cannot determine [under plain-error
review] whether a crime of violence enhancement was proper. In
such a case, we remand to the district court for supplementation
of the record and re-sentencing.”) (internal citations omitted).
Accordingly, we vacate the sentence imposed on Ramirez-Aguilar
and remand to the district court for development of the record
and resentencing.1
On remand, the district court should order the government to
supplement the record with documents that might establish to
which elements of assault Ramirez-Aguilar pleaded guilty. Once
the government has supplemented the record, the district court
should reconsider whether an eight-level enhancement is warranted
under U.S.S.G. § 2L1.2(b)(1)(C), taking into consideration
whether Ramirez-Aguilar’s conviction for assault qualifies as a
crime of violence. See Shelton, 325 F.3d at 561; Gonzalez-
Garcia, 2006 WL 346298, at **3-4. In making this determination,
the district court will no longer be bound by the Guidelines, but
it should still determine the applicable guideline range and
1
The judgment of conviction indicates that Ramirez-Aguilar
was ultimately convicted of a reduced charge. While the
indictment may not be particularly helpful in this case, the
government should supplement the record with other documents,
including the information filed in state court, so that the
district court may discern (with legal certainty) under which
provision Ramirez-Aguilar was convicted.
No. 04-41150
-6-
consider the factors under 18 U.S.C. § 3553(a).2 See United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005), cert. denied,
126 S. Ct. 43 (2005).
VACATED and REMANDED.
2
Because we vacate Ramirez-Aguilar’s sentence and remand
on other grounds, it is unnecessary to address Ramirez-Aguilar’s
argument in his supplemental letter brief that the district court
erred by mandatorily applying the Guidelines. See Bonilla-
Mungia, 422 F.3d at 321 n.6 (citing United States v. Alfaro, 408
F.3d 204, 210 n.2 (5th Cir. 2005), cert. denied, 126 S. Ct. 271
(2005)).