United States v. Jose Rico-Mejia ( 2017 )


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  •         IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-50022                        FILED
    February 10, 2017
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    JOSE GUSTAVO RICO-MEJIA, also known as Juan Gustavo Rico-Mejia,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
    PER CURIAM:
    Jose Gustavo Rico-Mejia pleaded guilty to illegal re-entry into the United
    States. The district court sentenced Rico-Mejia to 41 months of imprisonment
    and three years of supervised release. In making its sentencing determination,
    the district court imposed a sixteen-level enhancement for a past conviction
    under Arkansas law, on the grounds that it qualified as a “crime of violence.”
    See U.S.S.G. § 2L1.2(b)(1)(A)(ii). For the reasons that follow, we VACATE and
    REMAND for resentencing.
    I.
    On January 21, 2015, Rico-Mejia was charged by indictment with
    illegally reentering the United States after deportation, in violation of 8 U.S.C.
    No. 16-50022
    § 1326. On March 25, 2015, Rico-Mejia pleaded guilty without benefit of a plea
    agreement. A probation officer compiled his pre-sentence report (“PSR”).
    Applying the 2014 edition of the U.S. Sentencing Guidelines (“Guidelines”), the
    PSR recommended a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a).
    The PSR also recommended a sixteen-level enhancement due to Rico-Mejia’s
    September 14, 2007 conviction for terroristic threatening in violation of
    Arkansas code § 5-13-301(a)(1)—a felony in Arkansas that the PSR deemed to
    be a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 1 Rico-Mejia was given
    a three-level reduction for acceptance of responsibility, resulting in a total
    offense level of 21. Pursuant to the Guidelines, that offense level, combined
    with a criminal history category of II, resulted in a recommended sentencing
    range of 41 to 51 months’ imprisonment.
    At the December 17, 2015 sentencing hearing, Rico-Mejia objected to the
    sixteen-level enhancement, arguing that his prior state conviction did not
    constitute a crime of violence within the meaning of § 2L1.2 because “terroristic
    threatening” is not an enumerated crime of violence and does not have “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) (2014). Accordingly, Rico-
    Mejia contended that he should only have received a four-level increase. The
    district court disagreed and sentenced him to 41 months of imprisonment and
    three years of supervised release, a sentence at the bottom end of the
    sentencing range. The district court acknowledged that the Arkansas statute
    could be violated by threats not involving physical force, but overruled Rico-
    Mejia’s objection because the conduct actually charged in his case involved a
    threat to kill, which the district court believed to necessarily import an element
    1 All references to the Sentencing Guidelines refer to the 2014 version applicable in
    this case.
    2
    No. 16-50022
    of physical force. The sentencing judge also noted that he had “considered
    everything else about this case, including the conviction as well as the other
    [available] information concerning this particular defendant,” and that the
    sentence he chose “would be the same sentence that I would pronounce even if
    I would have sustained the Defendant’s objection to the Guideline
    Enhancement.” Rico-Mejia appealed, challenging the sixteen-level crime of
    violence enhancement.
    We first address whether the district court erred in imposing a sixteen-
    level sentencing enhancement pursuant to § 2L1.2(b)(1)(A)(ii). Finding that the
    district court did err, we progress to examine whether that error was harmless.
    II.
    Section 2L1.2 of the Guidelines states that the offense level for
    unlawfully entering or remaining in the United States is increased by sixteen
    if the defendant has previously been convicted of a “crime of violence.” U.S.S.G.
    § 2L1.2(b)(1)(A)(ii). As the district court’s characterization of Rico-Mejia’s prior
    offense is a question of law, we review it de novo. United States v. Herrera, 
    647 F.3d 172
    , 175 (5th Cir. 2011) (citing United States v. Hernandez-Galvan, 
    632 F.3d 192
    , 196 (5th Cir. 2011)).
    According to the Guidelines, a “crime of violence” consists of:
    [A]ny of the following offenses under federal, state, or
    local law: murder, manslaughter, kidnapping,
    aggravated assault, forcible sex offenses (including
    where consent to the conduct is not given or is not
    legally valid, such as where consent to the conduct is
    involuntary, incompetent, or coerced), statutory rape,
    sexual abuse of a minor, robbery, arson, extortion,
    extortionate extension of credit, burglary of a dwelling,
    or 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.
    3
    No. 16-50022
    U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2014). This court has interpreted this
    provision to mean that a prior offense qualifies as a crime of violence if that
    offense “(1) has physical force as an element, or (2) qualifies as one of the
    enumerated offenses.” 
    Herrera, 647 F.3d at 175
    (quoting United States v.
    Gomez-Gomez, 
    547 F.3d 242
    , 244 (5th Cir. 2008) (en banc), superseded by
    regulation on other grounds, as recognized in United States v. Diaz-Corado, 
    648 F.3d 290
    , 294 (5th Cir. 2011)). Because “terroristic threatening” is not included
    in the list of enumerated offenses above, we must now determine whether Rico-
    Mejia’s conviction for terroristic threatening includes physical force as an
    element.
    On appeal, Rico-Mejia argues that the district court erred in increasing
    his offense level by sixteen pursuant to § 2L1.2(b)(1)(A)(ii), contending that his
    prior Arkansas conviction for “terroristic threatening” does not constitute a
    crime of violence, since a person could “cause death or serious physical injury”
    even without using physical force and because the offense includes property
    damage while crimes of violence only involve injuries to people. In support of
    this contention, he cites United States v. Johnson, 286 F. App’x 155, 157 (5th
    Cir. 2008) (per curiam), an unpublished decision in which we held that a
    conviction for terroristic threatening under the same Arkansas statute did not
    qualify as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i). There, we reasoned
    that even though the conduct in that case involved a threat to kill, a person
    could cause physical injury without using physical force. Id.; see also United
    States v. Villegas-Hernandez, 
    468 F.3d 874
    , 879 (5th Cir. 2006) (“There is . . .
    a difference between a defendant’s causation of injury and the . . . use of
    force.”); United States v. De La Rosa-Hernandez, 264 F. App’x 446 (5th Cir.
    2008) (per curiam) (“As in Villegas, a defendant could violate [the California
    Terroristic Threats law], for example, by threatening either to poison another
    4
    No. 16-50022
    or to guide someone intentionally into dangerous traffic, neither of which
    involve ‘force’, as that term is defined by our court.”).
    The Government responds that these cases have been overruled by
    United States v. Castleman, 
    134 S. Ct. 1405
    , 1414 (2014), which held that a
    defendant’s guilty plea to having “intentionally or knowingly cause[d] bodily
    injury” to the mother of his child constituted “the use of physical force” required
    for a misdemeanor crime of domestic violence as defined in 18 U.S.C. §
    921(a)(33)(A). The Government points out that as part of the Supreme Court’s
    reasoning in that decision, it applied a definition of “use of physical force” that
    was much broader than that described in the above cases—one that could
    involve harm caused both directly and indirectly and that would include
    administering poison or similar actions. 
    Id. at 1413–15.
          Arkansas law decrees that a person is guilty of first-degree terroristic
    threatening if:
    (A) With the purpose of terrorizing another person, the person
    threatens to cause death or serious physical injury or
    substantial property damage to another person; or
    (B) With the purpose of terrorizing another person, the person
    threatens to cause physical injury or property damage to a
    teacher or other school employee acting in the line of duty.
    Ark. Code Ann. § 5-13-301(a)(1). To determine whether a given prior conviction
    qualifies for a Guidelines enhancement, courts use either (1) the categorical
    approach or (2) the modified categorical approach. United States v. Hinkle, 
    832 F.3d 569
    , 574 (5th Cir. 2016) (“[W]e have generally used the categorical and
    modified   categorical   approaches     in   applying   the   federal   sentencing
    Guidelines.”). The district court in this instance determined that the Arkansas
    statute was divisible under the modified categorical approach, and,
    5
    No. 16-50022
    accordingly, referred to the charging document to conclude that physical force
    was an element of terroristic threatening.
    The Supreme Court’s decision in Mathis v. United States, 
    136 S. Ct. 2243
    ,
    2248–57 (2016) addressed when and how courts may use the modified
    categorical approach in the context of federal sentencing. See also 
    Hinkle, 832 F.3d at 574
    (noting that although Mathis did not explicitly involve the federal
    sentencing Guidelines, it was nonetheless controlling in this circuit as concerns
    application of the modified categorical approach in the context of those
    Guidelines). This court has observed that Mathis “instructs that there is a
    difference between alternative elements of an offense and alternative means of
    satisfying a single element,” and that when a court confronts an alternatively-
    phrased statute, it must first “determine whether listed items in a statute are
    elements or means.” 
    Id. at 575
    (internal quotation marks and citation omitted).
    At the sentencing hearing, the district court responded to Rico-Mejia’s
    argument that physical force was not an element of the previous conviction
    because a conviction could be obtained under § 5-13-301(a)(1) without proof
    that a defendant threatened to use physical force by asking, “[H]ow else would
    you threaten to kill someone unless you’re going to use some type of force to
    bring about death, the actual killing? You can’t wish somebody dead, right?”
    The answer to the district court’s question is provided by the analysis set forth
    in Johnson, Villegas-Hernandez, and De La Rosa-Hernandez. These cases
    clarify that even if the district court correctly resorted to the modified
    categorical approach, § 5-13-301(a)(1)(A) cannot constitute a crime of violence
    under § 2L1.2(b)(1)(A)(ii) because it lacks physical force as an element.
    The Government’s contention regarding Castleman must be rejected. By
    its express terms, Castleman’s analysis is applicable only to crimes categorized
    as domestic violence, which import the broader common law meaning of
    6
    No. 16-50022
    physical force. Castleman is not applicable to the physical force requirement
    for a crime of violence, which “suggests a category of violent, active crimes”
    that have as an element a heightened form of physical force that is narrower
    in scope than that applicable in the domestic violence context. 
    134 S. Ct. 1411
    n.4. Accordingly, Castleman does not disturb this court’s precedent regarding
    the characterization of crimes of violence, and § 5-13-301(a)(1)(A) cannot
    constitute a crime of violence under § 2L1.2(b)(1)(A)(ii) because it lacks
    physical force as an element. See 
    Herrera, 647 F.3d at 175
    .
    III.
    The Government also contends that even if the district court erred in
    determining that the sixteen-level enhancement applied, that error was
    harmless because of the district court’s admonition that it would have imposed
    the same sentence even if it had sustained Rico-Mejia’s objection to that
    enhancement.
    The district court indicated that it considered multiple factors in
    imposing Rico-Mejia’s sentence, including: (1) the PSR; (2) Rico-Mejia’s
    personal characteristics; (3) the 18 U.S.C. § 3553(a) sentencing factors; (4) “the
    serious nature of the offense” and “particularly the quick turn-around between
    his last deportation from this country, and then his re-entry.” The district court
    then indicated that it also had considered Rico-Mejia’s conviction history—
    which included convictions for driving while intoxicated, a previous illegal
    entry, and terroristic threatening—and the sentences imposed pursuant to
    those prior convictions. The district court also indicated that it did not consider
    arrests that did not lead to convictions. The district court then concluded that
    to “promote respect for our laws, to discourage future criminal misconduct,
    which . . . is important considering his extensive criminal history, the quick
    turn-arounds in violation of our Immigration laws, including this one,” it was
    7
    No. 16-50022
    pronouncing the same sentence it would have pronounced even if the it had
    sustained Rico-Mejia’s objection to the sixteen-level enhancement. The district
    court further added that “even if [terroristic threatening] wasn’t a crime of
    violence, it could still be used as a conviction and considered as a factor for
    sentencing and promoting and considering public safety issues, as well as
    respect for our laws.”
    While a district court undoubtedly commits procedural error in
    improperly calculating the Guidelines range, see United States v. Richardson,
    
    676 F.3d 491
    , 511 (5th Cir. 2012), that error can be considered harmless
    provided that the sentence did not result from the error. United States v. Tzep-
    Mejia, 
    461 F.3d 522
    , 526–27 & n.6 (5th Cir. 2006). One way to demonstrate
    that the sentence was not imposed as a result of the Guidelines error is to show
    that the district court considered the correct Guidelines range and
    subsequently indicated that it would impose the same sentence even if that
    range applied. 
    Id. at 526
    & n.6.
    However, where the district court does not consider the correct
    guidelines range, a determination of harmlessness requires the proponent of
    the sentence to “convincingly demonstrate[] both (1) that the district court
    would have imposed the same sentence had it not made the error and (2) that
    it would have done so for the same reasons it gave at the prior sentencing.”
    United States v. Ibarra-Luna, 
    628 F.3d 712
    , 714 (5th Cir. 2010). This court has
    noted that such a showing involves a heavy burden, requiring the proponent
    to “point to evidence in the record that will convince [the appellate court] that
    the district court had a particular sentence in mind and would have imposed
    it, notwithstanding the error.” 
    Richardson, 676 F.3d at 511
    (quoting Ibarra-
    
    Luna, 628 F.3d at 717
    , 718) (internal quotation marks omitted). As there is no
    explicit or particularized statement from the district court showing that it
    8
    No. 16-50022
    calculated or considered the correct Guidelines range, our harmless error
    analysis must take place in the more demanding Ibarra-Luna scenario.
    The Government points to several pieces of evidence in an effort to carry
    its burden. These include the various considerations listed by the district court
    in imposing the sentence and the district court’s statement that it had
    “considered everything else about this case,” which the Government argues
    would include Rico-Mejia’s objection and the suggested sentencing range of 8–
    14 months contained within it.
    Meanwhile, Rico-Mejia points to the facts that (1) the difference between
    his actual sentencing range and possible lesser sentencing ranges is significant
    (at least 20 months) 2, and (2) his sentence corresponded precisely to the bottom
    of the incorrectly calculated sentencing range. Rico-Mejia draws a parallel
    between his situation and the situation of the defendant in United States v.
    Martinez-Romero, 
    817 F.3d 917
    (5th Cir. 2016), where the lowest end of the
    improperly calculated guideline range became the defendant’s precise
    sentence, an occurrence which the court refused to attribute to “mere
    serendipity.” 
    Id. at 926.
    Key to the court’s decision was the recognition that,
    despite the district court’s “multitude of reasons” for its choice of sentence, a
    review of the record disclosed “no indication that the court’s decision to select
    the exact low and high ends of the improper range was independent of the
    erroneous calculation that called the court’s attention to that range in the first
    instance.” 
    Id. Accordingly, the
    court’s choice to impose a guidelines sentence at
    precisely the bottom of the range was found to be influenced by the erroneous
    2 Rico-Mejia avers that the highest his sentencing range could be without the sixteen-
    level enhancement is 15 to 21 months, based on a categorization of his prior conviction as an
    aggravated felony. Yet even in advancing this argument he maintains that the correct range
    is 8–14 months.
    9
    No. 16-50022
    Guidelines calculation, even though the district court stated several times that
    it would have imposed the same sentence regardless of error. 
    Id. at 925.
          The facts of this case are similar to those of Martinez-Romero in two key
    ways. Both cases involve: (1) sentences that correspond precisely to the bottom
    of an erroneous guidelines calculation; (2) statements by the district court
    regarding criminal history and willingness to impose sentences regardless of
    error in guideline calculation. 3 The key potential difference between them
    relates to the presence of evidence to indicate that the court’s decision to select
    precisely the bottom of the recommended Guidelines range was independent of
    the erroneous calculation. In Martinez-Romero there was no such evidence at
    all. 
    Id. at 926.
    Here, there is some inferential evidence to be accounted for—
    although the district court never explicitly stated that it had calculated the
    Guidelines range that would have applied absent the sixteen-level upward
    adjustment, it did say that it had considered “everything else about this case,”
    and Rico-Mejia’s preferred calculation was included with his objection to the
    PSR. The combination of these facts could support the inference that the
    district court was not influenced by the incorrect calculation, but rather chose
    its sentence from among alternatives solely for the reasons it stated.
    This    potential     distinction    notwithstanding,      we    hold    that    the
    Government’s reference to the district court’s vague and unparticularized
    statement as the basis for a speculative inference that the district court
    considered alternative ranges that it did not calculate is insufficient to carry
    its heavy burden under 
    Richardson. 676 F.3d at 511
    . This is especially true in
    light of the district court’s choice to impose a sentence that corresponded
    3  Indeed, the court in Martinez-Romero stated no less than three times “that even if
    the 16-level enhancement for the attempted kidnapping was incorrect, it would nonetheless
    impose the same 46-month sentence.” 
    Martinez-Romero, 817 F.3d at 925
    .
    10
    No. 16-50022
    precisely to the bottom of the erroneous guidelines range, which constitutes
    evidence that the range impacted the district court’s decision. See Martinez-
    Romero, F.3d 917 at 925–26. Moreover, the district court’s other statements at
    the sentencing hearing do nothing to prove that the erroneous Guidelines
    calculation did not impact the sentence ultimately imposed. Accordingly, and
    akin to the situation in Martinez-Romero, we find that the Government is
    unable to convincingly show that the sentence imposed on Rico-Mejia was
    uninfluenced by the erroneous Guidelines calculation, such that we are
    “convince[d] . . . that the district court had a particular sentence in mind and
    would have imposed it, notwithstanding the 
    error.” 676 F.3d at 511
    ; see also
    
    Ibarra-Luna, 628 F.3d at 718
    –19.
    IV.
    On these facts, the Government has failed to meet its heavy burden to
    convincingly demonstrate that the district court would have imposed the same
    sentence regardless of its erroneous calculation. We therefore VACATE Rico-
    Mejia’s sentence and REMAND to the district court for resentencing.
    11