Lead Opinion
Miguel Chavez-Hernandez pleaded guilty, pursuant to a plea agreement, to being illegally present in the United States after being deported, pursuant to 8 U.S.C. § 1326. Over Chavez-Hernandez’s perfunctory objection, the district court increased his base offense level of eight by 16 levels, pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii), on the theory that his 2009 conviction for sexual activity with a minor in violation of Florida Statute § 794.05 was a “crime of violence.” Chavez-Hernandez’s criminal history category was II. The district court granted a three-level reduction for acceptance of responsibility and a further reduction sua sponte because the court concluded that his criminal history was over-represented. This resulted in an advisory sentencing guidelines range of 37 to 46 months of imprisonment. U.S.S.G. Ch. 5, Pt. A, Sen
1. Standard of Review
When an error is preserved by specific objection in the trial court, this court reviews the district court’s findings of fact for clear error and its application of the federal sentencing guidelines de novo. United States v. Gharbi
If, however, the defendant has failed to make his objection to the guidelines calculation sufficiently clear, the issue is considered forfeited, and we review only for plain error. Fed. R. Crim. P. 52(b); United States v. Whitelaw,
The purpose of plain error review is to instill in litigators the importance of preparing adequately before appearing in the trial court and, as necessary, clarifying issues to that court. Timely, adequate objections allow the trial court to rule in the first instance and, if necessary, correct itself without spawning an appeal. This standard usually shields the district court from reversal because of error that was unwittingly committed, because not brought to its attention. The standard also shields this court from ruling on issues that have been insufficiently vetted below. Plain error review implicitly acknowledges that, in many cases, an appeal represents the triumph of hindsight, as a party attempts to shore up objections ineffectively lodged in the trial court, or not lodged at all, by adducing after-the-fact support for its position. Thus, to afford the standard of harmless error, Fed. R.Crim.P. 52(a), to a defendant who makes a vague objection in the trial court, followed by a substantial and specific legal brief in the appellate court, would undermine the orderliness intended by these tiered standards.
This appeal exemplifies the lack of orderliness caused by a vague trial court objection. Chavez-Hernandez, represented by the Federal Public Defender, filed the following written objection to the
Mr. Chavez-Hernandez respectfully objects ... on the basis that the Government has failed to present competent evidence that would justify such an enhancement. Moreover, this is not a crime of violence nor an aggravated felony.
Counsel had two opportunities to explain the substance of this objection to the trial court. At the first sentencing hearing, he said the court had to rule on his objection to the 16-level crime of violence enhancement, but he presented no further support for the objection. A problem arose concerning proof of the documents and judgment underlying Chavez-Hernandez’s Florida conviction, and the hearing was continued for more than a week. When the second hearing took place, defense counsel made two requests of the court— to consider a downward departure and run the sentence concurrently with an anticipated probation violation sentence in Florida—and the court initiated a downward departure for criminal history. Other than commenting, “Your Honor, you know that I had objections to the 16-level enhancement ...defense counsel again failed to articulate why he objected to the enhancement. When the court stated its characterization of the prior crime as a “plus 16” enhancement, defense counsel neither objected nor said anything else about it.
On appeal, Appellant’s brief raises one issue: the propriety of treating the Florida guilty plea conviction as a crime of violence. This issue receives six full pages of legal briefing. Appellant notes that to justify the enhancement, the government had to prove that he admitted, in legally acceptable form, his commission of certain acts. Whether the government offered proof sufficient for this purpose is challenged by Chavez-Hernandez according to the discussion in Shepard v. United States and its numerous progeny.
The government’s brief contains nine pages of rebuttal to these arguments on the merits.
In this circuit, the government, defense counsel, probation officers, and the district and circuit judges are vividly aware of the difficulties this court has had in interpreting the “crime of violence” guideline, especially with respect to crimes against minors and children. See, e.g., United States v. Olalde-Hernandez,
Based on what little was said and written in the trial court here, the judge cannot have intuited that Chavez-Hernandez, who admitted he had an ongoing sexual
For all of these reasons, it is unfair to the government and the district court, and it would severely undermine procedural regularity, if we were to apply harmless error review to the purely conclusional objection by defense counsel to the “crime of violence” enhancement made in this case. At least, Chavez-Hernandez should have alerted the court that he was challenging whether the Florida statute inherently qualifies as a statutory rape or sexual abuse of a minor enumerated offense under § 2L1.1. Having failed to put the government or the court on notice of his current arguments in this convoluted area, Chavez-Hernandez must overcome the demanding standard of plain error review.
2. Plain Error?
Chavez-Hernandez argues that the crime of violence enhancement he received under § 2L1.2(b)(l)(A)(ii) is erroneous because the “use of force” is not an element of the Florida statute of conviction, and the offense does not qualify as the enumerated offense of either statutory rape or sexual abuse of a minor. We are required to plumb these issues in the first instance.
The Florida statute to which Chavez-Hernandez pled guilty in 2009 criminalizes sexual activity with 16- and 17-year-olds. Florida Statute § 794.05(1) (2009). A conviction for sexual assault is a crime of violence under this enhancement guideline if it is for sexual assault of a minor, for statutory rape, or for an offense with real or threatened use of physical force as an element. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). On its face, Chavez-Hernandez’s offense does not qualify under the physical force portion of the definition because the Florida statute does not include the use of force as an element of the offense. See also U.S.S.G. § 2L1.2 cmt. n. l(B)(iii).
His offense also fails to qualify as statutory rape because the statute of conviction fails to comply with the “generic, contemporary meaning” of statutory rape using a common-sense approach.
The government here contends that the holding in Lopez-DeLeon regarding California’s law was dicta. This is incorrect. If Lopez-DeLeon had held that California’s statute was a categorical crime of violence, it would not have reached the issue whether state court documents established the victim’s age. The actual statute “may be supplemented by an examination of adjudicative records [w]hen the statute of conviction is overly broad.” Id. (emphasis added). This court and others have characterized Lopez-DeLeon as holding that the California statutory rape law is not a categorical crime of violence because the generic definition of statutory rape does not include actions with 17-year-old victims. See, e.g., United States v. Munoz-Ortenza,
Building on Lopez-DeLeon and two other cases founded on Texas law concerning sexual abuse of minors, this court held in Munoz-Ortenza, supra, a case cited by neither party, that a California statute criminalizing sexual contact with a minor 18 or under is not a crime of violence, because the age of seventeen is not within the generic, contemporary meaning of a “minor” for purposes of this enhancement. See also United States v. Najera-Najera,
This case differs from Munoz-Ortenza in the sole respect that the government contends that applicable state court records, coupled with defense counsel’s admission that the victim was fourteen, establish either the victim’s status as a minor or the inequity, under the fourth prong of clear error review, of our reaching out on appeal to correct the plain error. We agree with the government on both counts.
First, counsel acknowledged the age of the victim. At the sentencing hearing on April 2, 2010, the district judge asked Chavez-Hernandez’s counsel, “Which if any objections do you need a ruling from the Court on and what would you like to say on his behalf here?” ROA 115; Transcript 6. Mr. Nogueras, Chavez-Hernandez’s counsel replied,
MR. NOGUERAS: Thank you, Judge. Your Honor, you know that I had objections to the 16-level enhancement and after our first—last hearing, the probation officer provided us with the copy of the police report because the question was whether the child was pregnant, and apparently—
THE COURT: Well, but that’s not going to make a determination as to whether this plus 16 applies or not.
MR. NOGUERAS: Yes. And also—but there was a question regarding whether the lU-year-old was pregnant or not. Apparently, the answer is “No,” she was not. I also wanted to ask the Court to consider—
*501 THE COURT: And it appears to the Court this is a plus 16. The Government doesn’t disagree with that, do you? MS. LEO: No, Your Honor, it’s our position that this is a plus 16.
THE COURT: That this is sexual abuse of a minor.
MS. LEO: Yes, Your Honor.
ROA 115; Transcript 6 (emphasis added).
The statement at issue here is not a “judicial admission.” A judicial admission is “a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making [it],” because for a statement of counsel to qualify as a judicial admission “it must be made intentionally as a waiver, releasing the opponent from proof of fact.” Martinez v. Bally’s Louisiana, Inc.,
Second, even if this colloquy were somehow insufficient to fulfill the evidentiary function of supporting that the victim was well below the “age of consent,” the fact that the government has chosen to try to prove this fact on appeal reveals starkly the procedural unfairness of granting “plain error” relicf. Had defense counsel sufficiently argued the categorical inapplicability of the Florida statute to satisfy the crime of violence enhancement for sexual abuse of a minor, the government was entitled to supply proof, from the Florida conviction records or otherwise as allowed pursuant to Shepard, of the victim’s true age. (In Munoz-Ortenza, in contrast, “the record was silent on the age of the victim.”
We conclude for the above reasons that the sentence must be AFFIRMED.
Notes
. The Federal Public Defender moved for summary affirmance on the ground that the issue whether Chavez-Hernandez's conviction for sexual activity with a minor was a crime of violence for purposes of § 2L1.2(b)(l)(A)(ii) was foreclosed by United States v. Castro-Guevarra,
. “Analysis of whether a prior conviction is an enumerated crime of violence requires ... a comparison to the actual statute of conviction.” Lopez-DeLeon at 474 (emphasis added).
Dissenting Opinion
dissenting:
I respectfully dissent. I would vacate the sentence and remand for resentencing.
I agree with the majority opinion that plain error is the appropriate standard of review.
Where I part ways with the majority opinion is on the admittedly discretionary fourth prong. See United States v. John,
As in John, the error here caused the district court to impose what “was, in reality, an above-Guidelines sentence ... without the district court’s consideration of the correct advisory Guidelines sentencing range.” Id. at 286. “Absent remand,” then, Chavez-Hernandez—like the defendant in John—will receive a sentence calculated without reference to the proper “starting point” and “initial benchmark,” and without being “subjected to the process otherwise applicable to above-Guidelines sentences.” Id. (internal quotation marks and citations omitted). Failing to recognize plain error despite these considerations implicates “the perception of fair sentencing” and the “integrity and public
I share the majority opinion’s concern about potential “sandbagging” by defense counsel and strongly agree that making timely objections is an important part of the adjudicative process. The “punishment” for failure to do so is the high bar set by the plain-error standard of review. The problem presented by the majority opinion’s approach here is that it penalizes the failure to object by foreclosing correction of the error at all. I respectfully submit that this approach goes too far; displeasure with counsel’s actions “cannot be the basis for declining to vacate [the defendant’s] sentence.” Id. at 288.
The majority opinion rests on two points, neither of which, in my view, are appropriate considerations here. The majority opinion concludes that the victim in question was under sixteen-years-old based on defense counsel’s purported “admission” at sentencing and information contained in certain state-court documents.
The first problem with this approach is that it “goes behind” a statute of conviction that, on its face, is arguably not a crime of violence. As the majority opinion details, Chavez-Hernandez’s prior conviction implicates our Taylor-Shepcvrd case-law,
In Lopez-DeLeon, we surveyed the law and determined that the “age of consent” was sixteen in the overwhelming number of states, federal law, and the Model Penal Code, such that otherwise consensual sexual contact becomes criminal when the victim is under sixteen years of age.
The state court document proffered by the Government—entitled “Findings Pursuant to Florida Statute 943.0435”—is not a Shepard-approved document, and nothing indicates Chavez-Hernandez “assented” to its findings.
In these circumstances, concluding that the minor at issue was under sixteen is not just “narrowing” the statute of conviction, but going completely beyond it. Even under plain-error review, Shepard still controls; it does not allow us to simply find facts or rely on what we “know” happened. See, e.g.,
I also disagree with the majority opinion’s characterizing as an “evidentiary admission” what was, in context, defense counsel’s passing reference to the victim as “the 14-year old.” The majority opinion cites no precedent suggesting that such an offhand remark constitutes an “admission” foreclosing the defendant from demanding Shepard-approved documents to support the claim.
It is difficult to discern exactly why the majority opinion considers defense counsel’s remark to be an admission, judicial or evidentiary. The majority opinion acknowledges that defense counsel’s statement was not a judicial admission; nothing in the record indicates that defense counsel meant for the comment to relieve the Government of its burden to establish the victim’s age in justifying the crime-of-violence enhancement’s application. See Martinez v. Bally’s La., Inc.,
Calling the comment an “evidentiary admission” makes no difference. As the majority opinion notes, an evidentiary admission is “a statement of assertion or concession made for some independent purpose.” Id. at 477-78 (citing McNamara v. Miller,
“[O]ur sentencing precedent has been generous with remand, often finding that errors leading to substantial increases in sentences, even those errors not raised until appeal and thus subject to plain error review, merited remand.” John,
. See, e.g., Puckett v. United States,
. In arriving at this range, the district court found that the defendant’s criminal history category was over-represented and reduced it from II to I. With an offense level of 24, reduced by a 3-level reduction for acceptance of responsibility, the offense level was 21, yielding a range of 37-46. The sentence given, 37 months, is at the bottom of that range.
. Chavez-Hernandez contends that, had the offense in question not been counted as a crime of violence, he instead would have received a 4-level, not 16-level, increase. He posits that he then would have received a 2-level reduction for acceptance of responsibility and remained in criminal history category II, yielding a range of 8-14 months. The Government offers no competing calculation. If the district court had again reduced the criminal history category to I, the range would have been 6-12 months.
. Shepard, v. United States,
. No one disputes that consensual sexual activity with a person seventeen or older would not qualify as "statutory rape” under the "generic, contemporary meaning” we must apply. I note that our precedents on this matter are not completely uniform on the question of whether the correct age is "under sixteen” or "under seventeen.” See, e.g., United States v. Castro-Guevarra,
. Interestingly, the "Findings Pursuant to Florida Statute” document suggests that the minor was fifteen. So, we have four possible ages: "fourteen” as suggested by the stray remark of defense counsel, "fifteen” as suggested by the court of conviction’s findings, and "sixteen or seventeen” as suggested by the actual statute of conviction. Additionally, if we are going to "go behind” the statute, the date of birth provided in the information indicates that Chavez-Hernandez was only twenty-three years old at the time of his conviction; not twenty-four or older as required by section 794.05.
. Nor does the reprehensibility of a defendant’s prior conduct change the analysis. By definition, all convicted criminal defendants
. See, e.g., Alvarado-Hernandez,