United States v. Mirna Gomez
2012 U.S. App. LEXIS 16710
| 4th Cir. | 2012Background
- Gomez, a citizen of El Salvador, pleaded guilty to unlawful reentry after deportation following an aggravated felony.
- She challenged the government's use of a modified categorical approach to treat her Maryland child abuse conviction (1999) as a crime of violence for a § 2L1.2(b)(1)(A)(ii) enhancement.
- The district court applied the modified categorical approach, looking at the record to determine which part of the statute Gomez violated, and added 16 levels to her offense level.
- The district court then calculated a Guidelines range of 41–51 months, but varied downward to a 24-month sentence.
- On appeal, Gomez argued the modified categorical approach was improper for an indivisible statute that does not distinguish forceful vs. non-forceful acts.
- The majority vacated and remanded, holding the modified categorical approach applies only to divisible statutes; the district court erred in applying it to § 35C(i). The dissent would have allowed the approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court may use the modified categorical approach for Gomez's Maryland conviction. | Gomez argues the statute is indivisible and cannot be parsed to a violent form. | The government contends the modified categorical approach is appropriate to determine the specific portion of the statute charged. | Modified categorical approach not permitted for indivisible statute |
| Whether § 35C(i) is divisible into forceful vs nonforceful conduct for the purpose of applying the approach. | § 35C(i) can be violated by forceful or nonforceful acts, so it is not divisible into forceful/nonforceful categories. | The government would treat the statute as divisible for applicability of the approach. | Statute not divisible into forceful vs nonforceful; approach inappropriate |
| Impact of Johnson/Shepard on the use of the modified categorical approach for indivisible statutes. | Johnson recognizes limited use of the approach to determine which portion of a broad statute was violated; Shepard governs the documents considered. | The government relies on Johnson/Shepard to permit the approach in broader statutes. | Johnson/Shepard do not authorize applying the approach to indivisible statutes here |
| Harmless-error analysis if the approach were applied improperly. | Even if error occurred, the district court's rationale could still justify the sentence. | Remand unnecessary if the sentence would be the same absent the enhancement. | Harmless error not established; remand warranted |
| Overall conclusion on Gomez's sentence after improper use of the approach. | Sentence should stand or be evaluated under proper law if needed. | Remand for resentencing is appropriate due to error in enhancement determination. | Sentence vacated and remanded for resentencing |
Key Cases Cited
- Begay v. United States, 553 U.S. 137 (Supreme Court, 2008) (defines violent felony for guidelines; context for generic vs specific)
- Taylor v. United States, 495 U.S. 575 (Supreme Court, 1990) (generic vs non-generic offenses; framework for Taylor approach)
- Shepard v. United States, 544 U.S. 13 (Supreme Court, 2005) (documents to determine basis of conviction; avoid retrial)
- Chambers v. United States, 555 U.S. 122 (Supreme Court, 2009) (limits on using facts beyond charging document for sentencing)
- Johnson v. United States, 130 S. Ct. 1265 (Supreme Court, 2010) (modified categorical approach for multi-phrase statutes; permissible vs not)
- Nijhawan v. Holder, 129 S. Ct. 2294 (Supreme Court, 2009) (clarifies use of Shepard-approved materials in criminal statute interpretation)
- Woods v. United States, 576 F.3d 400 (Seventh Circuit, 2009) (limits modified categorical approach to divisible statutes)
- Rivers v. United States, 595 F.3d 558 (Fourth Circuit, 2010) (divisibility concept in ACCA context; broad vs narrow statutes)