United States v. Jaimes-Jaimes, Rene ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2871
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RENÉ JAIMES-JAIMES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-017-001—J.P. Stadtmueller, Judge.
____________
ARGUED JUNE 16, 2004—DECIDED MAY 4, 2005
____________
Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. René Jaimes-Jaimes pleaded
guilty to one count of being present in the United States
unlawfully after having been deported, 8 U.S.C. § 1326(a).
The parties in their written plea agreement, and the
probation officer in her presentence report, all concurred
that the sentencing court should increase the offense level
by 16 levels because Jaimes (as he calls himself) previously
had been convicted of a “crime of violence.” See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The district court accepted that position
and determined that Jaimes’s total offense level was 21 and
that his sentencing range was 70 to 87 months. The court
2 No. 03-2871
sentenced him to 78 months’ imprisonment. On appeal,
however, Jaimes argues that the district court committed
plain error by imposing the 16-level increase; Jaimes now
contends that his prior offense is an “aggravated felony” but
not a “crime of violence” under § 2L1.2, and so he should
have been given only an eight-level increase. See U.S.S.G.
§ 2L1.2(b)(1)(C). The sentence imposed by the district court
was indeed plainly erroneous, and we now vacate and
remand for resentencing.
I. BACKGROUND
Jaimes was deported to Mexico in 2001, but in January
2003 he turned up in jail in Milwaukee, Wisconsin, after
being arrested for a drug offense. Jaimes has several prior
convictions, including a Wisconsin state conviction for
“discharging a firearm into a vehicle or building,” Wis. Stat.
§ 941.20(2)(a), an offense he concedes qualifies as an
aggravated felony, see 8 U.S.C. § 1101(a)(43)(F).
The offense guideline applicable to Jaimes’s immigration
violation was amended in November 2001 to provide that a
prior conviction for an “aggravated felony” warrants an
eight-level increase in offense level, but that a conviction for
one of several types of more serious felonies warrants either
a 12-level or a 16-level increase. See U.S.S.G. § 2L1.2(b)(1);
United States v. Vargas-Garnica, 332 F.3d 471, 474 (7th Cir.
2003). The previous guideline had provided that a convic-
tion for any aggravated felony triggered a 16-level increase,
whereas the Guidelines now provide that a defendant with
a conviction for an aggravated felony receives an increase
of between 8 and 16 levels depending on whether his
conviction also meets the requirements for one of the higher
increases. Vargas-Garnica, 332 F.3d at 474. In making the
change, the Sentencing Commission observed that the
previous system “sometimes result[ed] in disproportionate
penalties,” and thus it decided to impose “a more graduated
No. 03-2871 3
sentencing enhancement . . . depending on the seriousness
of the prior aggravated felony and the dangerousness of the
defendant.” U.S.S.G., App. C, amend. 632 (effective Nov. 1,
2001). As relevant here, the Guidelines now provide that a
16-level increase is warranted if the defendant’s prior
conviction qualifies as a “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
The plea agreement recommended a 16-level increase be-
cause of the parties’ assumption that Jaimes had incurred
a “pre-deportation conviction of a crime of violence.”1 In the
presentence report, the probation officer likewise rec-
ommended a 16-level increase for a crime of violence. At
sentencing the district court read aloud the total offense
level, criminal history score, and imprisonment range rec-
ommended in the presentence report and asked Jaimes’s
counsel, “[D]o you and your client accept those guidelines?”
Counsel responded: “We do. However, we reserve the right
and opportunity to argue for a departure, Your Honor.”
II. ANALYSIS
A. Waiver versus forfeiture
We must first determine whether Jaimes waived or merely
forfeited any challenge to the probation officer’s recommen-
dation that he receive a 16-level increase. Waiver is the in-
tentional relinquishment of a known right. United States v.
Olano, 507 U.S. 725, 733 (1993); United States v. Jacques,
345 F.3d 960, 962 (7th Cir. 2003). Forfeiture is the failure to
timely assert a right. Olano, 507 U.S. at 733; Jacques, 345
1
The plea agreement also states that Jaimes is eligible for the
16-level increase because he previously committed a “firearms
offense,” U.S.S.G. § 2L1.2(b)(1)(A)(iii), but the presentence report
makes no mention of this and the government does not defend the
sentence on this ground, so we ignore it.
4 No. 03-2871
F.3d at 962. Waiver precludes appellate review, but for-
feiture permits review for plain error. Olano, 507 U.S. at
733-34; Jacques, 345 F.3d at 962.
The government contends that Jaimes waived his right to
challenge the calculation of his sentence and directs our
attention to United States v. Staples, 202 F.3d 992, 995 (7th
Cir. 2000). According to the government, we held in Staples
that defense counsel’s representations that he had discussed
the presentence report with his client and that they had no
objections constituted a waiver of a guidelines calculation
included in the report because counsel’s statements evi-
denced that the defendant knew at the time of sentencing
that he could object to that particular sentencing calcula-
tion but affirmatively decided not to object. See id. Here, the
government contends that when Jaimes’s attorney told the
district court at sentencing that he had no objections to the
probation officer’s calculation of the guideline range, Jaimes
likewise waived any challenge to the sentencing calculation
at issue in this appeal.
We do not read Staples as rigidly as the government urges.
Although counsel’s representations obviously are signifi-
cant, a lawyer’s statement at sentencing that the defendant
does not object to anything in the presentence report does
not inevitably constitute a waiver of the defendant’s right
to challenge on appeal any guideline calculation included in
that report. See United States v. Jimenez, 258 F.3d 1120,
1124 (9th Cir. 2001). We indeed have found waiver in cir-
cumstances where defense counsel made a representation
at sentencing similar to the one Jaimes’s counsel made to
the district court here, see United States v. Martinez-Jimenez,
294 F.3d 921, 923 (7th Cir. 2002); United States v.
Richardson, 238 F.3d 837, 841 (7th Cir. 2001); Staples, 202
F.3d at 995, but we do not read our cases as establishing an
inflexible rule that every objection not raised at a sen-
tencing hearing is waived.
No. 03-2871 5
The touchstone of waiver is a knowing and intentional
decision. See United States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001) (“Put another way, a forfeiture is an accidental
or negligent omission . . . while a waiver is the manifesta-
tion of an intentional choice not to assert the right.”). There
may be sound strategic reasons why a criminal defendant
will elect to pursue one sentencing argument while also
choosing to forego another, and when the defendant selects
as a matter of strategy, he also waives those arguments he
decided not to present. See id. (finding argument waived
because failure to raise it in district court “was clearly a
strategic decision rather than a mere oversight”);
United States v. Si, 343 F.3d 1116, 1128 n.3 (9th Cir. 2003)
(sentencing argument was waived where defendant did not
object for “tactical reasons”); United States v. Joaquin, 326
F.3d 1287, 1291 (D.C. Cir. 2003) (declining to find waiver
where nothing suggested that defense counsel “made a
conscious, strategic decision” not to object); United States v.
Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997) (defendant
made a “calculated decision” not to object, and therefore
waived argument); United States v. Yu-Leung, 51 F.3d 1116,
1122 (2d Cir. 1995) (characterizing forfeiture as “a matter
of oversight” and waiver as “a tactical matter”).
But in this case we cannot conceive of any strategic rea-
son for Jaimes not objecting to the extra eight-level increase
in his offense level, and the government offers us no sound
reason—indeed no reason at all—why Jaimes would have
opted to bypass a challenge to the 16-level adjustment. We
have previously suggested that an argument should be
deemed forfeited rather than waived if finding waiver from
an ambiguous record would compel the conclusion that
counsel necessarily would have been deficient to advise the
defendant not to object. See Richardson, 238 F.3d at 841.
That is the case here, since the only plausible possibility—if
the 16-level increase is indeed erroneous—is that Jaimes’s
attorney was deficient in electing not to challenge it.
6 No. 03-2871
Defense counsel was not alone in his oversight, for no one
involved with Jaimes’s sentencing—including the Assistant
United States Attorney who now so vigorously argues
waiver, the probation officer, or even the district
judge—appears to have recognized that Jaimes’s prior
offense might not be a “crime of violence.”
We conclude that Jaimes’s failure to object to the 16-level
adjustment resulted from an oversight by defense counsel
and was therefore “accidental rather than deliberate.” Id.Waiver principles should be construed liberally in favor of
the defendant, United States v. Sumner, 265 F.3d 532, 539
(7th Cir. 2001); Cooper, 243 F.3d at 416; United States v.
Perry, 223 F.3d 431, 433 (7th Cir. 2000), and there is no-
thing in the record before us to suggest that Jaimes had any
idea that the 16-level increase might be erroneous. Forfei-
ture occurs because of neglect while waiver happens
intentionally. See Sumner, 265 F.3d at 537. There is no in-
dication that Jaimes intended to relinquish his right to be
sentenced at the lower offense level, and we can conceive of
no tactical reason why he would choose to be sentenced at
a higher offense level. As we are left with the conclusion
that Jaimes’s failure to challenge the 16-level adjustment
could have resulted only from an oversight by his attorney,
we find that he forfeited, rather than waived, his sentencing
challenge.
B. Sixteen-Level Adjustment
Because Jaimes forfeited his argument concerning the
calculation of his sentence by failing to raise it in the
district court, our review is for plain error. See Olano, 507
U.S. at 732; Cooper, 243 F.3d at 415; see also Fed. R. Crim. P.
52(b). Under a plain error standard, an error must be clear
or obvious and affect substantial rights. Sumner, 265 F.3d
at 539. Even then, we are not required to correct the error
but may exercise our discretion to do so if the error “ ‘seri-
No. 03-2871 7
ously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’ ” United States v. Kibler, 279 F.3d 511,
514 (7th Cir. 2002) (quoting Olano, 507 U.S. at 732).
We begin with the question of whether the increase was
erroneous. The Guidelines state that a defendant should
receive a 16-level adjustment if he has a prior conviction for
a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime
of violence” is defined in § 2L1.2 as:
[A]ny of the following: murder, manslaughter, kid-
napping, aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor, robbery, ar-
son, extortion, extortionate extension of credit,
burglary of a dwelling, or any 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.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added). Jaimes
has not been convicted of any of the enumerated crimes, so
only the latter part of this definition concerns us. Notably,
“crime of violence” is defined more narrowly in § 2L1.2 than
in other contexts because the definition does not encompass
acts involving the use of force against property or acts that
merely pose a risk of harm to another person. See United
States v. Calderon-Pena, 383 F.3d 254, 261 (5th Cir. 2004)
(en banc); United States v. Pimentel-Flores, 339 F.3d 959,
965-66 & nn.7-8 (9th Cir. 2003); cf. United States v.
Gardner, 397 F.3d 1021, 1022-23 (7th Cir. 2005) (U.S.S.G.
§§ 2K2.1 and 4B1.2(a)(2) both define crime of violence to
include conduct that “presents a serious potential risk of
physical injury to another”); Bazan-Reyes v. INS, 256 F.3d
600, 612 (7th Cir. 2001) (crime of violence, as defined in 18
U.S.C. § 16(b), applies to “crimes in which the offender is
reckless with respect to the risk that intentional physical
force will be used in the course of committing the offense”).
8 No. 03-2871
The government contends that Jaimes’s conviction for
“discharging a firearm into a vehicle or building” qualifies
as a crime of violence. The elements of that offense are that
the defendant: (1) “discharged a firearm”; (2) “intentionally
shot the gun into a building” (or vehicle); and (3) “should
have realized that there might be a human being present in
the building” (or vehicle). State v. Grady, 499 N.W.2d 285,
287 (Wis. Ct. App. 1993); see also Wis. Stat. § 941.20(2)(a).
These statutory elements of § 941.20(2)(a) impose no
requirement that the state prove, as an element of the
offense, that the defendant used, attempted to use, or
threatened to use physical force “against the person of
another.” See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Indeed, the
state need not prove that another person was present in the
vehicle or building, or even anywhere near the targeted
object; all that is necessary given the elements of the offense
is that the state prove that the defendant should have
realized that there might be a person present. See Grady,
499 N.W.2d at 287. The Wisconsin statute requires that the
defendant use force by shooting a gun, see id., but it
provides that the force be directed against a vehicle or a
building, not “against the person of another” as required by
§ 2L1.2.
The government in its brief concedes that “the elements
of Section 941.20(2)(a) do not explicitly require [that] a trier
of fact conclude a defendant used or threatened the use of
physical force against the person of another.” But the
government contends that the firing of a gun into a poten-
tially occupied building nevertheless “poses an immediate,
severe and inherent risk to the safety of another.” The
government is no doubt correct, but the definition of a “crime
of violence” in § 2L1.2—unlike that term’s definition in
§ 4B1.2(a)(2)—does not encompass “conduct that presents a
serious potential risk of physical injury to another.” See
Calderon-Pena, 383 F.3d at 261. We are unwilling to as-
sume, as does the government, that the omission of this
No. 03-2871 9
language from § 2L1.2 carries no significance. The definition
in § 2L1.2 requires the use, attempted use, or threatened
use of force against the person of another, and the govern-
ment concedes that the elements of the offense do not
satisfy this standard.
The government also argues that the district court could
have determined that Jaimes committed a crime of violence
by looking beyond the elements of the offense and consider-
ing the facts that led to his conviction. But examining
Jaimes’s underlying conduct is inappropriate because a
crime of violence must have as an element the use, at-
tempted use, or threatened use of force against another,
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), so a sentencing court
generally may not look beyond the elements of the offense
for which the defendant was convicted. Flores v. Ashcroft,
350 F.3d 666, 670 (7th Cir. 2003); see also United States v.
Shannon, 110 F.3d 382, 384 (7th Cir. 1997) (en banc). No
exception to that general rule applies here. A district court
may look to the underlying conduct if the statute under
which the defendant was convicted is ambiguous in that
there are multiple ways to violate a particular statute, some
of which would qualify for the adjustment and some of
which would not. See Flores, 350 F.3d at 670. That is not
the case with § 941.20(2)(a), so an examination of Jaimes’s
conduct is not permissible. The elements of § 941.20(2)(a) do
not satisfy the definition of a “crime of violence” in § 2L1.2,
and accordingly the application of the 16-level increase was
erroneous.
But it is not enough for us to find that Jaimes’s sentence
resulted from error because, under a plain error standard,
we must also conclude that the error was plain, that it af-
fected Jaimes’s substantial rights, and that it seriously af-
fected the fairness, integrity, or public reputation of judicial
proceedings before we may exercise our discretion to correct
it. Kibler, 279 F.3d at 514. We believe that correcting the
error in Jaimes’s sentence is warranted. First, the error was
10 No. 03-2871
plain. “ ‘Plain’ is synonymous with ‘clear’ or, equivalently,
‘obvious.’ ” Olano, 507 U.S. at 734. The error here is obvious
because, as even the government concedes, there is no
question that the elements of Jaimes’s prior conviction fail
to satisfy the definition of a “crime of violence” set forth in
§ 2L1.2. Second, the error affected Jaimes’s substantial
rights because the imposition of the 16-level in-
crease—rather than an eight-level increase—caused his
imprisonment range to more than double from 30 to
37 months to 70 to 87 months. Finally, we elect to exercise
our discretion to correct the error because we believe the
error impacted the fairness of the proceedings. Jaimes may
have failed to notice the sentencing error, but so did defense
counsel, the Assistant United States Attorney, the proba-
tion officer, and the district court judge, and we conclude
that it would be unjust to place the entire burden for these
oversights on Jaimes by permitting him to serve an exces-
sive prison sentence.
C. Impact of United States v. Booker
Shortly after argument in this appeal, the Supreme Court
decided Blakely v. Washington, 124 S. Ct. 2531 (2004). We
granted Jaimes’s motion to suspend this appeal pending the
Supreme Court’s decision on the applicability of Blakely to
the federal sentencing guidelines. The Court has now held
that the Guidelines are to be considered advisory rather
than mandatory. See United States v. Booker, 125 S. Ct.
738, 756-57 (2005). Booker does not change our conclusion
that plain error occurred in this case because the district
court, interpreting the Guidelines as mandatory, sentenced
Jaimes under an incorrect offense level that more than
doubled his range of imprisonment. Because the Guidelines
are now advisory, the district court must consider the cor-
rect guideline range when determining a new sentence, but
may “tailor the sentence in light of other statutory concerns
as well.” Id. at 757.
No. 03-2871 11
III. CONCLUSION
The district court committed plain error by imposing a 16-
level increase under U.S.S.G. § 2L1.2. Accordingly, Jaimes’s
sentence is VACATED, and this case is REMANDED to the
district court for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-05