Lumanauw v. Mukasey
510 F.3d 75
1st Cir.
2007
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UNITED STATES v. BROWN

No. unknown

United States Court of Appeals, First Circuit

December 7, 2007

510 F.3d 75

most of his five years and three months by now. The mandatory minimum under the ACCA is fifteen years. 18 U.S.C. § 924(e)(1). The Government would have us keep Brown in prison for ten more years based on nothing more than the letter “G” in paragraph 33 of the PSR. Indeed, as the PSR itself states, “No information was available regarding this offense.” PSR ¶ 33. In the face of this reality, the Government cannot be said to have met even its modest initial burden when it can produce nothing more. This was also the conclusion of the District of Columbia Circuit:

[T]he Government may not simply rely on assertions in a presentence report if those assertions are contested by the defendant. Thus, when the defendant calls into dispute a presentence report‘s description of an alleged prior conviction, the Government must demonstrate that the description in the report is based on a sufficiently reliable source to establish the accuracy of that description.

; cf.
(contested PSR entry, where none of the evidence supporting the entry appeared in the record, insufficient on its own to prove existence of guilty plea for purposes of Guidelines enhancement).15

Accordingly, we hold that the ACCA is inapplicable in the circumstances because the Government has proven, at most, just two prior convictions that qualify as predicates under 18 U.S.C. § 924(e). We consequently arrive at the same conclusion reached by the district court when it resentenced Brown, albeit for a different reason, and see no need to disturb the court‘s sentence of sixty-three months. See

(Court of Appeals may affirm on any theory supported by the record). Since we hold the ACCA inapplicable, we need not address Brown‘s various challenges to its constitutionality.

VI. Conclusion

Brown‘s conviction is affirmed. Brown‘s sentence is affirmed, but on different grounds.

Mary Jane LUMANAUW, Petitioner, v. Michael B. MUKASEY, Attorney General,* Respondent.

No. 07-1307

United States Court of Appeals, First Circuit.

Decided Dec. 7, 2007.

Submitted Oct. 3, 2007.

Randall A. Drew and Law Offices of Mona T. Movafaghi, PC on brief, for petitioner.

Peter D. Keisler, Acting Attorney General, Leslie McKay, Senior Litigation Counsel, and Angela N. Liang, Trial Attorney, on brief, for respondent.

Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

CYR, Senior Circuit Judge.

In 2001, Mary Jane Lumanauw, a citizen and national of Indonesia, entered the United States, remained illegally after the expiration of her temporary visa, was placed in removal proceedings, conceded removability, and filed an asylum and withholding-of-removal application based on her allegations that she had been persecuted in Indonesia because she is a Christian. Specifically, petitioner alleged that in October 1999, her ex-fiancé—a Muslim—had threatened to kill her and kidnap their minor daughter Sasha. Three days later, three men wearing military uniforms came to the petitioner‘s house asserting the same demands. In December 2000, petitioner‘s ex-fiancé arrived at the house to get Sasha, but left without incident. Petitioner reported the incident to the police, who informed the petitioner‘s father that “they had other serious matters to take care [of].” Petitioner contends that most police officers are Muslim, and that they refused to assist her because she is a Christian. After leaving Sasha with her parents, petitioner departed for the United States. Her parents and Sasha followed one year later.

After conducting an evidentiary hearing, the immigration judge (IJ) credited petitioner‘s testimony, but denied her asylum application as untimely, in that it was filed more than one year after her arrival in the United States. Petitioner does not request review of this ruling. See

(noting that we lack jurisdiction to review a denial of an asylum application for untimeliness, citing 8 U.S.C. § 1158(a)(3)). With respect to the petitioner‘s application for withholding of removal, the IJ held that the petitioner failed to meet her burden to prove a likelihood of future persecution upon her return to Indonesia, in that (i) her ex-fíancé‘s threats were motivated by his legitimate parental interest in Sasha, and not by any professed oppugnancy to the petitioner‘s Christian beliefs; (ii) the record contained no evidence to support the petitioner‘s bald assertion that the police refused to protect her because she was a Christian; and (iii) the petitioner eventually evaded further confrontations with her ex-fiancé by relocating from Manado to Jakarta. On appeal, the BIA summarily affirmed the IJ‘s ruling.

In her petition for review, Lumanauw contends that the denial of her withholding application is erroneous because the administrative record compels a finding that it is more likely than not that she would be threatened by her ex-fiancé and the police on account of her Christian beliefs were she repatriated to Indonesia. See id. § 1231(b)(3)(A);

(noting that “we use the deferential substantial evidence standard for factual findings ... [and will] ‘uphold the BIA‘s decision “unless any reasonable adjudicator would be compelled to conclude to the contrary” ’ “) (citations omitted). We do not agree.

The record contains no conclusive evidence that petitioner‘s ex-fiancé‘s actions were motivated to any extent by petitioner‘s Christian beliefs. See

(noting that aliens “must provide ‘conclusive evidence’ that they were targeted based on one of the five asylum grounds“) (citation omitted). As the IJ aptly noted, her ex-fiancé mentioned her religion only once, threatening that, if petitioner chose not to surrender the custody of Sasha to him, he could harm her with impunity by arranging it to appear as though her injuries had resulted from a random act of religious violence. The IJ fairly inferred, therefore, that this was essentially a child custody battle between estranged parents, and one which likely would have occurred even if petitioner had been a Muslim. See, e.g.,
(noting that withholding of removal cannot be premised on what is “essentially a personal dispute,” unrelated to animus toward one of five protected statutory classes [e.g., a religious group]) (emphasis added);
(same). As the IJ‘s finding is amply supported by substantial record evidence, we deny the petition for review.

Denied.

CAMBRIDGE LITERARY PROPERTIES, LTD., Plaintiff, Appellant, v. W. GOEBEL PORZELLANFABRIK G.m.b.H. & CO. KG.; Goebel Art G.m.b.H., d/b/a Goebel of North America, Defendants, Appellees, Ulrich Stocke; Goebel Verwaltungs-Und; Beteiligungsgesellschaft G.m.b.H.; Wilhelm Goebel, Defendants.

No. 06-2339

United States Court of Appeals, First Circuit.

Decided Dec. 13, 2007.

Heard May 8, 2007.

Notes

15
Other cases that treat the sufficiency of a presentence report for this purpose refer to “uncontroverted” reports. See
; see also
(no error for district court to rely on PSR entry as evidence of conviction for ACCA enhancement where defendant had not challenges entry‘s accuracy);
(en banc) (“[A] presentence investigation report, if not challenged, will normally satisfy this showing.“); cf.
(no error for district court to rely on uncontroverted PSR entry as proof of conviction for purposes of calculating Guidelines criminal history score).
*
Pursuant to Fed. R.App. P. 43(c)(2), Attorney General Michael B. Mukasey has been substituted for former Attorney General Alberto R. Gonzáles as the respondent herein.