United States v. Gonzalez-Chavez , 432 F.3d 334 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit November 30, 2005
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40173
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE GUADALUPE GONZALEZ-CHAVEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(5:03-CR-872-ALL)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
On July 18, 2003, Jose Guadalupe Gonzalez-Chavez (“Gonzalez-
Chavez”) pled guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. The
district court, adopting in part the presentence report’s
sentencing recommendations, which included a sixteen-level
enhancement for a prior conviction under Florida state law,
sentenced Gonzalez-Chavez to a term of fifty-seven months in
1
prison.1 He now appeals the judgment of the district court, arguing
that the district court plainly erred by (1) characterizing his
prior conviction under Florida law for aggravated battery as a
crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines
Manual (“U.S.S.G.”) and (2) imposing a sixteen-level enhancement
based on that characterization. For the reasons stated below, we
vacate Gonzalez-Chavez’s sentence and remand for development of the
record and re-sentencing.
I.
Gonzalez-Chavez argues that his prior conviction for
aggravated battery does not fall within the definition of “crime of
violence” as it appears in U.S.S.G. § 2L1.2(b)(1)(A)(ii) and that
the district court therefore improperly enhanced his offense level
by sixteen levels under that section. Because Gonzalez-Chavez
raises this issue for the first time on appeal, we review for plain
error. United States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir.
2005). When reviewing for plain error, we will find reversible
error only if “(1) there was an error; (2) the error was clear and
obvious; and (3) the error affected the defendant’s substantial
rights.” United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.
2002) (citing United States v. Olano, 507 U.S. 725, 732 (1993)). If
1
The district court originally sentenced Gonzalez-Chavez to
a term of sixty-six months in prison, but it re-sentenced him
after granting his motion to correct sentence. That procedural
history is not relevant to this appeal.
2
these elements are present, “we may exercise our discretion to
correct the error only if it ‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’” Id.
(alteration in original) (citing Olano, 507 U.S. at 732).
U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level
enhancement of a defendant’s offense level “[i]f the defendant
previously was deported, or unlawfully remained in the United
States, after a conviction for a felony that is . . . a crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002).2 The commentary to
that section defines a “crime of violence” as “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,” § 2L1.2(b)(1)(A)(ii), cmt. 1(B)(ii)(I), and
states that the term “crime of violence” includes “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,”
§ 2L1.2(b)(1)(A)(ii), cmt. 1(B)(ii)(II). The government does not
contend that aggravated battery is an enumerated offense under
subpart II of the commentary;3 thus, the only issue on appeal is
2
The district court used the 2002 edition of the U.S.
Sentencing Guidelines Manual in sentencing Gonzalez-Chavez.
3
This circuit has not yet addressed whether the Florida
offense of aggravated battery (or any other state aggravated
battery offense, for that matter) might be categorized as
“aggravated assault,” one of the enumerated crimes of violence,
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whether, under subpart I of the commentary, the district court
properly held that Gonzalez-Chavez’s prior conviction has as an
element the use, attempted use, or threatened use of physical force
against the person of another.
The Fifth Circuit has had several opportunities now to examine
the “use of force” requirement in subpart I of the commentary to
U.S.S.G. § 2L1.2(b)(1)(A)(ii), and the following is the current
method of evaluating whether a prior offense is a crime of violence
under that subpart:
When determining whether a prior offense is a crime
of violence because it has as an element the use,
attempted use, or threatened use of force, district
courts must employ the categorical approach established
in Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct.
2143, 109 L. Ed. 2d 607 (1990). Calderon-Pena, 383 F.3d
[254,] 257-58 [(5th Cir. 2004)]; see also United States
v. Alfaro, 408 F.3d 204, 208 (5th Cir. 2005); United
States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.
2002). Under that approach, courts determine the elements
to which a defendant pleaded guilty by analyzing the
statutory definition of the defense, not the defendant’s
underlying conduct. Calderon-Pena, 383 F.3d at 257
(citing United States v. Vargas-Duran, 356 F.3d 598, 606
(5th Cir. 2004) (en banc)). If a statute contains
multiple, disjunctive subsections, courts may look beyond
the statute to certain “conclusive records made or used
in adjudicating guilt” in order to determine which
particular statutory alternative applies to the
defendant’s conviction. See United States v. Garza-Lopez,
410 F.3d 268, 274 (5th Cir. 2005) (discussing the
parameters of our review under Taylor). These records are
generally limited to the “charging document, written plea
agreement, transcript of the plea colloquy, and any
under the commentary to § 2L1.2(b)(1)(A)(ii). Because that issue
was not raised by the parties or adequately briefed by them when
they were given an opportunity to do so, we decline to address it
here. In re Acosta, 406 F.3d 367, 375 (5th Cir. 2005).
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explicit factual finding by the trial judge to which the
defendant assented.” Shepard v. United States, ___ U.S.
___, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205 (2005).
Thus, to decide whether the district court’s crime-
of-violence enhancement was proper, we must answer the
following questions: First what particular offense was
[the defendant] convicted of? Second, does that offense
require proof of the use, attempted use, or threatened
use of physical force . . . ?
Bonilla-Mungia, 422 F.3d at 320.
Gonzalez-Chavez was convicted of aggravated battery under
section 784.045 of the 1998 Florida Statutes, which provides three
distinct ways to commit aggravated battery.4 Unfortunately, the
record does not indicate under which subsection of section 784.045
Gonzalez-Chavez was convicted. Although the presentence report
(“PSR”) contains facts relating to Gonzalez-Chavez’s alleged
conduct in committing the aggravated battery, this Court will not
consider those facts because they are not explicit findings the
Florida court made or used in adjudicating Gonzalez-Chavez’s guilt.
Bonilla-Mungia, 422 F.3d at 321; see also Garza-Lopez, 410 F.3d at
4
Section 784.045 states,
(1)(a) A person commits aggravated battery who, in
committing battery:
1. Intentionally or knowingly causes great bodily harm,
permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
(b) A person commits aggravated battery if the
person who was the victim of the battery was pregnant
at the time of the offense and the offender knew or
should have known that the victim was pregnant.
Fla. Stat. § 784.045. Battery occurs under Florida law when a
person “[a]ctually and intentionally touches or strikes another
person against the will of the other” or “intentionally causes
bodily harm to another person.” Fla. Stat. § 784.03(1)(a).
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274 (“[A] district court is not permitted to rely on a PSR’s
characterization of a defendant’s prior offense for enhancement
purposes.”). And the record contains no other documents on which
this Court may rely to determine whether Gonzalez-Chavez’s
conviction fits under the definition of crime of violence. Where we
cannot identify with legal certainty under which portion of a
statute a defendant was convicted, we cannot determine whether a
crime of violence enhancement was proper. Bonilla-Mungia, 422 F.3d
at 321. In such a case, we remand to the district court for
supplementation of the record and re-sentencing. Id.
We reiterate the rule of Bonilla-Mungia here to emphasize that
in cases in which, as here, it is not clear (1) under which portion
of a multipart statute the defendant was previously convicted and
(2) whether the subsections of that statute qualify as crimes of
violence, district courts must ensure that the appropriate
documentation5 is included in the record before imposing a sixteen-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reliance on
a PSR will not suffice in these cases. We do not address on these
facts the case in which a statute’s subsections are all clearly
5
As discussed above, “[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.’” Bonilla-Mungia, 422 F.3d
at 320.
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crimes of violence. In such a case, remand might not be required.6
Accordingly, we VACATE the sentence imposed on Gonzalez-Chavez
and REMAND for development of the record and re-sentencing.
II.
On remand, the district court should order the government to
supplement the record with documents that might establish to which
elements of aggravated battery Gonzalez-Chavez pled guilty. Once
the government has supplemented the record, the district court
should reconsider whether a sixteen-level enhancement is warranted
under U.S.S.G. § 2L1.2, taking into consideration whether Gonzalez-
Chavez’s conviction for aggravated battery qualifies as a crime of
violence under either subpart of the commentary to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
6
Here, at least one subsection of the statute, namely
subsection 1(b), is not clearly a crime of violence. This is
because battery of a pregnant woman can be committed without the
use, attempted use, or threatened use of force, for example, it
can be committed by spitting on a pregnant woman. See Johnson v.
State, 858 So. 2d 1071, 1072 (Fla. App. 3d Dist. 2003) (holding
that just because spitting on someone certainly “amounts to an
unwanted touching, it does not amount to the use or threat of use
of physical force or violence.”).
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