United States v. Luna-Montoya ( 2003 )


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  •                                                           United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                     IN THE UNITED STATES COURT OF APPEALS           November 5, 2003
    
                             FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                             _____________________                      Clerk
    
                                  No. 02-41444
                             _____________________
    
    UNITED STATES OF AMERICA,
    
                                                        Plaintiff-Appellee,
    
                                      versus
    
    RIGOBERTO LUNA-MONTOYA,
    
                                                        Defendant-Appellant.
    
    
    _________________________________________________________________
    
               Appeal from the United States District Court
                    for the Southern District of Texas
                         USDC No. L-02-CR-753-ALL
    _________________________________________________________________
    
    Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges.
    
    PER CURIAM:1
    
         Rigoberto     Luna-Montoya     appeals   the     district     court’s
    
    determination that his Texas conviction for theft from a person was
    
    a “crime of violence” for purposes of assessing a sixteen-level
    
    sentencing enhancement under § 2L1.2(b)(1)(A)(ii) of the 2001
    
    version of the United States Sentencing Guidelines.        Luna-Montoya
    
    contends that his prior conviction for theft from a person is not
    
    a “crime of violence” for these purposes since it does not have as
    
    
    
         1
          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    this opinion should not be published and is not precedent except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 for in 5th CIR. R. 47.5.4.
    an element the intentional use of force against a person.2      We
    
    agree.
    
         Luna-Montoya, a Mexico citizen and national, was discovered in
    
    the United States by Border Patrol Agents in Texas on May 4, 2002.
    
     Having been previously deported from the United States on March
    
    31, 1999, Luna-Montoya was charged with being found unlawfully and
    
    knowingly present in the United States after deportation, in
    
    violation of 8 U.S.C. § 1326(a) and (b)(2).   He subsequently pled
    
    guilty to this charge.   At sentencing, the district court accepted
    
    the presentence report recommending a sixteen-level enhancement to
    
    Luna-Montoya’s base offense level of eight on the grounds that
    
    Luna-Montoya’s prior conviction of theft from a person3 under Texas
    
    state law constituted a “crime of violence” under U.S.S.G. §
    
    2L1.2(b)(1)(A)(ii).   Notably, Luna-Montoya did not object to the
    
    
         2
          Luna-Montoya also contends, solely for the purpose of
    preserving the issue for further appeal, that the "aggravated
    felony" provision of 8 U.S.C. § 1326(b)(2) is unconstitutional in
    the light of the Supreme Court's decision in Apprendi v. New
    Jersey, 
    530 U.S. 466
     (2000). He forthrightly concedes, however,
    that this argument is foreclosed by Almendarez-Torres v. United
    States, 
    523 U.S. 224
     (1998), which Apprendi expressly declined to
    overrule. See Apprendi, 530 U.S. at 489-90. Accordingly, we need
    not consider this matter any further. See United States v. Dabeit,
    
    231 F.3d 979
    , 984 (5th Cir. 2000) ("'The Supreme Court has left no
    doubt that as a constitutionally inferior court, we are compelled
    to follow faithfully a directly controlling Supreme Court precedent
    unless and until the Supreme Court itself determines to overrule
    it.'") (quoting Hopwood v. Texas, 
    84 F.3d 720
    , 722 (5th Cir.
    1996)).
         3
          Prior to being deported in 1999, Luna-Montoya had pled guilty
    to theft from a person in Texas and on November 6, 1998, he was
    sentenced to six months’ confinement there. Immediately following
    his release from prison, he was deported to his native Mexico.
    
                                     2
    report or to the increased offense level. After a three-level
    
    reduction for acceptance of responsibility, this left Luna-Montoya
    
    with    a   total    offense     level   of   twenty-one   and   a   guideline
    
    imprisonment range of seventy to eighty-seven months.                The judge
    
    ultimately sentenced Luna-Montoya to seventy months’ imprisonment.
    
           On appeal, Luna-Montoya contends that the district court erred
    
    in categorizing his earlier conviction of theft from a person as a
    
    “crime of violence.” Ordinarily, a district court’s interpretation
    
    and application of the Sentencing Guidelines is reviewed de novo.
    
    United States v. Charles, 
    301 F.3d 309
    , 312-13 (5th Cir. 2002)(en
    
    banc).      Because Luna-Montoya did not raise this objection below,
    
    however, this Court reviews the actions of the district court for
    
    plain error.        United States v. Calverley, 
    37 F.3d 160
    , 162 (5th
    
    Cir. 1994) (en banc).          To establish plain error, a petitioner must
    
    show that there was an error; the error was clear and obvious; and
    
    the error materially affected his substantial rights.                   United
    
    States v. Olano, 
    507 U.S. 725
    , 732 (1993).                 When all of these
    
    elements are present, we may exercise our discretion to correct the
    
    error if it “seriously affect[s] the fairness, integrity, or public
    
    reputation of judicial proceedings.” Id. (internal quotation marks
    
    and citation omitted).
    
           The first question before this court is thus whether the
    
    district      court’s    classification       of   Luna-Montoya’s      earlier
    
    conviction constitutes error.            We find that it does.       The 2001
    
    Sentencing Guidelines specify that a prior offense qualifies as a
    
                                             3
    “crime of violence” for purposes of the sixteen-level sentencing
    
    enhancement if it is either “an 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” or
    
    an offense enumerated in Application Note 1(B)(ii)(II).    U.S.S.G.
    
    § 2L1.2, cmt. n. 1(B)(ii); see United States v. Rayo-Valdez, 
    302 F.3d 314
    , 316 (5th Cir. 2002)(“The language of 2L1.2 says that crime
    
    of violence means that which is in subparagraph I, and includes
    
    that which is in subparagraph II.”).    Theft from a person is not
    
    one of the offenses   enumerated in Application Note 1(B)(ii)(II).4
    
    Accordingly, theft from a person is only a “crime of violence”
    
    under § 2L1.2(b)(1)(A)(ii) if it “has as an element the use,
    
    attempted use, or threatened use of physical force against the
    
    person of another.”
    
         In analyzing this issue, we need not consider the facts
    
    underlying Luna-Montoya’s previous conviction of theft from a
    
    person.   Instead, our duty is to “look only to the fact of the
    
    conviction and the statutory definition of the prior offense” under
    
    Texas law.   Taylor v. United States, 
    495 U.S. 575
    , 602 (1990).
    
    “Congress did not intend sentencing hearings to become retrials of
    
    the underlying conduct involved in the defendant’s prior federal or
    
    
    
         4
          The   enumerated   offenses   are   "murder,    manslaughter,
    kidnapping, aggravated assault, forcible sex offenses (including
    sexual abuse of a minor), robbery, arson, extortion, extortionate
    extension of credit, and burglary of a dwelling." U.S.S.G. § 2L1.2,
    cmt. n. 1(B)(ii).
    
                                     4
    state convictions.”     United States v. Velasquez-Overa, 
    100 F.3d 418
    , 421 (5th Cir. 1996).
    
         The Texas theft from a person statute under which Luna-Montoya
    
    was convicted provides in relevant part:
    
         (a) A person commits an offense if he unlawfully appropriates
         property with intent to deprive the owner of property.
    
         (b) Appropriation of property is unlawful if:
         (1) it is without the owner’s effective consent
         ...
         (e) an offense under this section is:
         (4)a state jail felony if:
         ...
         (B) regardless of value, the property is stolen from the
         person of another.
    
    TEX. PENAL CODE ANN. § 31.03.
    
         Notably, nothing in the Texas statutory definition of theft
    
    from a person indicates that “the use, attempted use, or threatened
    
    use of physical force against the person of another” is an element
    
    of the crime.   Accordingly, we find that the district court erred
    
    in determining that this offense constituted a “crime of violence”
    
    for purposes of assessing a sixteen-level enhancement.
    
         Under plain error review, however, a mere finding of error is
    
    not enough to reverse the decision of the district court.       For an
    
    error to constitute reversible error, this Court must also conclude
    
    that the error was “clear and obvious” and that it “affected [Luna-
    
    Montoya’s] substantive rights.” Olano, 507 U.S. at 732.          Duly
    
    noting this, the government concedes the fact that the district
    
    court   committed   error   in   classifying   Luna-Montoya’s    prior
    
    conviction as a crime of violence. It contends, however, that this
    
                                      5
    fact does not warrant reversal since the district court’s error was
    
    not clear and obvious.      We disagree.
    
         In determining a sentence, courts are “bound to follow each
    
    sentencing guideline and accompanying policy statements.”                  United
    
    States v. Urias-Escobar, 
    281 F.3d 165
    , 167 (5th Cir.2002) (citing
    
    Mistretta v. United States, 
    488 U.S. 361
    , 391 (1989), and Williams
    
    v. United States, 
    503 U.S. 193
    , 199-201 (1992)).             The language of
    
    the relevant guideline here is clear and unambiguous: In order for
    
    an offense to be classified as a “crime of violence,” it must “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(b)(1)(A)(ii).      Moreover, our prior case law has consistently
    
    indicated that, in analyzing whether the use, attempted use or
    
    threatened use of physical force is an element of a particular
    
    offense, a court looks only at the statutory definition of the
    
    prior offense.     See, e.g., United States v. Shelton, 
    325 F.3d 553
    ,
    
    558 n.5 (5th Cir. 2003); Velasquez-Overa, 100 F.3d at 421.                    The
    
    offense of theft from a person as defined by Texas law plainly does
    
    not have such an element.             Accordingly, the district court’s
    
    finding that theft from a person constituted a crime of violence
    
    for purposes of § 2L1.2(b)(1)(A)(ii) was clearly and obviously
    
    erroneous.
    
         Despite the clear language of the guideline and consistent
    
    direction from this Court on the subject of how this guideline
    
    should   be   applied,     the   government      asserts    that    this   error
    
                                           6
    nevertheless cannot be plain since no court in any circuit has
    
    previously ruled on the question of whether theft from a person
    
    under Texas law is a “crime of violence” for purposes of U.S.S.G.
    
    §    2L1.2(b)(1)(A)(ii).           This    argument,         however,      ignores     the
    
    established principle that an error may be plain despite the fact
    
    that the precise underlying legal issue has never been addressed by
    
    a court.     See United States v. Spruill, 
    292 F.3d 207
    , 215 n.10 (5th
    
    Cir. 2002) (noting that the fact that a particular factual and
    
    legal scenario has not been addressed in a reported opinion “does
    
    not preclude the asserted error . . . from being sufficiently clear
    
    or   plain     to    authorize    vacation      of    the    conviction        on   direct
    
    appeal.”).          What is more, we have applied this principle in a
    
    nearly identical context before.               For example, in United States v.
    
    Gracia-Cantu, 
    302 F.3d 308
    , 312-13 (5th Cir. 2002), we found plain
    
    error in a district court’s determination that injury to a child
    
    constituted a “crime of violence,” notwithstanding the fact that
    
    there was no prior circuit opinion addressing this specific matter.
    
    Accordingly, the government’s argument to this end is without
    
    merit.
    
           Finally, on the question of whether the error made by the
    
    district court affected Luna-Montoya’s substantial rights, this
    
    court    has    previously       found    plain      error    where     the    incorrect
    
    application         of   sentencing   guidelines       resulted       in   a   “dramatic
    
    increase” in the recommended imprisonment range and the actual term
    
    of imprisonment imposed.              See, e.g.,       United States v. Gracia-
    
                                               7
    Cantu, 
    302 F.3d 308
    , 313 (5th Cir. 2002); United States v. Alarcon,
    
    
    261 F.3d 416
    , 423 (5th Cir. 2001); United States v. Aderholt, 
    87 F.3d 740
    , 744 (5th Cir. 1996).          Here, without the sixteen-level
    
    increase,   Luna-Montoya   would   have    been   subject   to    a    term   of
    
    imprisonment between twenty-one and twenty-seven months.               With the
    
    sixteen-level increase, Luna-Montoya’s recommended sentence was
    
    between seventy and eighty-seven months, and he was actually
    
    sentenced to seventy months’ imprisonment.           This difference in
    
    sentence is the same difference in sentence that this court found
    
    to be a “dramatic increase” that “affected [the defendant’s]
    
    substantial   rights”   and   “seriously     affect[ed]     the       fairness,
    
    integrity, or public reputation of the judicial proceedings” in
    
    Gracia-Cantu.    302 F.3d at 313.           See   also United States v.
    
    Williamson, 
    183 F.3d 458
    , 464 (5th Cir. 1999)(finding that a two-
    
    fold increase in prison time affected the defendant’s substantial
    
    rights). Accordingly, we find that the district court’s error here
    
    affected Luna-Montoya’s substantial rights, and we exercise our
    
    discretion to correct it.
    
         Having found that the district court committed error, that the
    
    error was clear and obvious, and that it affected Luna-Montoya’s
    
    substantial rights, we conclude that the district court’s sixteen-
    
    level enhancement of Luna-Montoya’s sentence constituted plain
    
    error.   Therefore, we VACATE the sentence imposed by the district
    
    court and REMAND with instructions to resentence Luna-Montoya in a
    
    manner not inconsistent with this opinion.
    
                                        8
                                          VACATED AND REMANDED.5
    
    
    
    
    5
     Judge Garza concurs in the judgment only.
    
                               9