United States v. Antonio-Agusta
672 F.3d 1209
10th Cir.2012Background
- Antonio-Agusta pleaded guilty to unlawful re-entry after removal under 8 U.S.C. §1326(a).
- The PSR treated his Arizona aggravated-assault convictions as felony crimes of violence and applied a sixteen-level enhancement under §2L1.2(b)(1)(A)(ii).
- The PSR relied on the underlying indictment which showed he used a knife in the offenses.
- At sentencing, the district court also relied on the indictment to determine the convictions were crimes of violence, producing a range of 51–71 months before a downward variance to 46 months.
- The Arizona indictment charged three counts of aggravated assault; the counts were amended by a plea agreement to three counts of non-dangerous aggravated assault; the judgment reflects Counts 1–3 Amended Aggravated Assault.
- The central issue was whether the indictment was incorporated by reference in the judgment and whether the amendment affected whether the convictions were crimes of violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment was incorporated by reference in the judgment | Government argues indictment incorporated by reference; reliable elements. | Antonio-Agusta contends indictment not incorporated; unreliable elements. | Indictment incorporated by reference; reliable elements. |
| Whether the plea agreement amended the indictment to defeat the violence classification | Indictment amended only to remove dangerousness; does not defeat violence | Amendment could obscure elements; improperly used | Indictment amended by plea to remove dangerousness; convictions still violent. |
| Whether the underlying Arizona convictions qualify as felony crimes of violence under §2L1.2 | Arizona offenses meet generic aggravated assault definition | Statutory derivation uncertain; potential non-violent elements | Yes; three counts qualify as crimes of violence. |
| Proper application of the modified categorical approach under Shepard/Zuniga-Soto | Records beyond statute permissible to prove elements | Records insufficient if not incorporated | Record supports use of modified categorical approach; convictions valid for enhancement. |
Key Cases Cited
- Perez-Vargas v. United States, 414 F.3d 1282 (10th Cir.2005) (formal vs. modified categorical approach to prior crimes)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (allowing review of charging documents to prove elements when necessary)
- Montero v. Foreman, 64 P.3d 209 (Ariz.App.2003) (dismissal of dangerousness does not alter the charged offense for purposes of violence)
- Joyner v. State, 158 P.3d 263 (Ariz.App.2007) (plea agreements/convictions; not reliable if misaligned with charging document's elements)
- Thompson v. State, 924 P.2d 1048 (Ariz.App.1996) (judgment must reference charging document for incorporation by reference)
- United States v. Bennett, 108 F.3d 1315 (10th Cir.1997) (distinguishing cases where record fails to establish violent conviction)
- United States v. Torres-Romero, 537 F.3d 1155 (10th Cir.2008) (use of record to determine violence in prior convictions)
- United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir.2008) (modified categorical approach guidance)