United States v. Jose Rico-Mejia
2017 U.S. App. LEXIS 9733
| 5th Cir. | 2017Background
- Defendant Jose Gustavo Rico‑Mejia pleaded guilty to illegal reentry under 8 U.S.C. § 1326 and faced sentencing based on the 2014 U.S. Sentencing Guidelines.
- The PSR applied U.S.S.G. § 2L1.2(a) (base offense level 8) and recommended a 16‑level enhancement under § 2L1.2(b)(1)(A)(ii) because of a 2007 Arkansas conviction for terroristic threatening (Ark. Code § 5‑13‑301(a)(1)).
- With a 3‑level acceptance reduction and criminal history category II, the PSR produced a total offense level of 21 and a Guidelines range of 41–51 months.
- At sentencing the defendant objected, arguing the Arkansas terroristic threatening offense is not a "crime of violence" because it does not necessarily have as an element the use of physical force; the district court overruled the objection based on the specific charged conduct (threat to kill) and imposed 41 months (bottom of range).
- On appeal the Fifth Circuit reviewed (de novo) whether the Arkansas statute qualifies as a crime of violence under U.S.S.G. § 2L1.2 and whether any error was harmless given the district court’s statement it would have imposed the same sentence absent the enhancement.
Issues
| Issue | Plaintiff's Argument (Rico‑Mejia) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Arkansas first‑degree terroristic threatening (Ark. Code § 5‑13‑301(a)(1)) is a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) | Statute can be violated without an element of "use of physical force" (e.g., poisoning, indirect causation, property damage), so it is not a crime of violence. | Castleman broadens "use of physical force" to include indirect means of causing bodily injury, so prior conviction may qualify. | Statute is not a crime of violence under § 2L1.2 because it lacks physical‑force as an element; Castleman is not controlling for this Guidelines definition. |
| Whether the district court’s erroneous Guidelines enhancement was harmless (i.e., would have imposed same sentence anyway) | The sentencing range without the 16‑level enhancement would have been substantially lower; sentence at the exact bottom of the erroneous range suggests the error influenced the sentence. | The district court said it considered everything and would have imposed the same sentence even if the objection were sustained. | Government failed to meet the heavy burden to prove harmlessness; vacatur and remand for resentencing required. |
Key Cases Cited
- United States v. Herrera, 647 F.3d 172 (5th Cir. 2011) (interpreting §2L1.2 crime‑of‑violence requirement and categorical approach)
- United States v. Gomez‑Gomez, 547 F.3d 242 (5th Cir. 2008) (categorical approach framework for crimes of violence)
- United States v. Villegas‑Hernandez, 468 F.3d 874 (5th Cir. 2006) (distinguishing causation of injury from use of force)
- United States v. Castleman, 572 U.S. 157 (2014) (domestic‑violence context definition of "use of physical force"—not controlling for Guidelines crime‑of‑violence analysis)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (Mathis rule on elements vs. means for modified categorical approach)
- United States v. Martinez‑Romero, 817 F.3d 917 (5th Cir. 2016) (vacatur where sentence equaled bottom of erroneous Guidelines range and harmlessness not shown)