United States v. Reyes
2012 U.S. App. LEXIS 18358
| 2d Cir. | 2012Background
- Reyes pleaded guilty to one count of bank robbery under 18 U.S.C. § 2113(a); district court sentenced him as a career offender under U.S.S.G. § 4B1.1(a).
- The PSR inconsistently classified Reyes as a career offender based on two or more prior convictions that included a controlled-substance offense and a crime of violence; the PSR did not clearly identify the predicates or their sources.
- At sentencing, Reyes’s counsel had no objections to the PSR’s facts or the career-offender designation, and the court imposed 188 months’ imprisonment.
- Reyes appealed alleging plain error for relying on the PSR’s uncited pre-arrest conduct to classify him as a career offender and for Johnson v. United States to limit such reliance.
- The court vacated Reyes’s sentence and remanded for resentencing, allowing the government to present evidence on whether Reyes’s battery conviction was a crime of violence; it also noted that conduct can be considered under 18 U.S.C. § 3553(a) for purposes of sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a district court rely on a PSR’s pre-arrest conduct to classify a prior offense as a crime of violence | Reyes (plaintiff) argues no; such reliance is improper without objecting | Reyes’s opponent (State) argues for allowing reliance | No; PSR may not be used to justify crime-of-violence finding from pre-arrest conduct |
| Did Reyes admit the factual predicates by not objecting to the PSR | Reyes contends lack of objection cannot establish admission of predicate facts | Government argues silence constitutes admission of facts underpinning the career-offender status | No; silence does not validate reliance on uncontested PSR facts for 4B1.2(a) |
| Whether a Florida battery on a law enforcement officer constitutes a crime of violence under 4B1.2(a)(1) | Whether the underlying conduct meets the use-of-force element | Battery may involve only unwanted touching, not force under 4B1.2(a)(1) | Battery with only touching may not be a crime of violence under 4B1.2(a)(1) |
| Whether the government can rely on a PSR’s uncontested description to determine the crime-of-violence status | Such reliance is improper per the modified categorical approach | Uncontested PSR facts should be treated as evidence | No; PSR cannot be used to determine crime-of-violence from pre-arrest conduct |
| Remand for evidence on the nature of the prior battery conviction; use of Shepard sources | Remand appropriate to allow proper proof | Government should be allowed to present evidence on remand | Remand required; government may introduce evidence to prove if battery was a crime of violence under 4B1.2(a) |
Key Cases Cited
- Johnson v. United States, 130 S. Ct. 1265 (2010) (limits on reliance on PSR for crime-of-violence determinations under Johnson)
- Shepard v. United States, 544 U.S. 13 (2005) (limits on courts’ use of extrinsic materials to prove prior convictions)
- Taylor v. United States, 495 U.S. 575 (1990) (application of the prior-conviction focus in ACCA-like schemes)
- United States v. Rosa, 507 F.3d 142 (2d Cir. 2007) (open question on using PSR to determine underlying facts of a prior conviction)
- Walker v. United States, 595 F.3d 441 (2d Cir. 2010) (identifies approach to 4B1.2 definitions and related issues)
- Savage v. United States, 542 F.3d 959 (2d Cir. 2008) (modified categorical approach framework for crimes of violence)
- United States v. Baker, 665 F.3d 51 (2d Cir. 2012) (requires certain evidence to prove a prior conviction constitutes a crime of violence)