UNITED STATES OF AMERICA, Plaintiff - Appellee v. JOSE GUSTAVO RICO-MEJIA, also known as Juan Gustavo Rico-Mejia, Defendant - Appellant
No. 16-50022
United States Court of Appeals for the Fifth Circuit
February 10, 2017
Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
Appeal from the United States District Court for the Western District of Texas USDC No. 2:15-CR-68-1
Jose Gustavo Rico-Mejia pleaded guilty to illegal re-entry into the United States. The district court sentenced Rico-Mejia to 41 months of imprisonment and three years of supervised release. In making its sentencing determination, the district court imposed a sixteen-level enhancement for a past conviction under Arkansas law, on the grounds that it qualified as a “crime of violence.”
I.
On January 21, 2015, Rico-Mejia was charged by indictment with illegally reentering the United States after deportation, in violation of
At the December 17, 2015 sentencing hearing, Rico-Mejia objected to the sixteen-level enhancement, arguing that his prior state conviction did not constitute a crime of violence within the meaning of
We first address whether the district court erred in imposing a sixteen-level sentencing enhancement pursuant to
II.
Section 2L1.2 of the Guidelines states that the offense level for unlawfully entering or remaining in the United States is increased by sixteen if the defendant has previously been convicted of a “crime of violence.”
According to the Guidelines, a “crime of violence” consists of:
[A]ny of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
On appeal, Rico-Mejia argues that the district court erred in increasing his offense level by sixteen pursuant to
The Government responds that these cases have been overruled by United States v. Castleman, 134 S. Ct. 1405, 1414 (2014), which held that a defendant‘s guilty plea to having “intentionally or knowingly cause[d] bodily injury” to the mother of his child constituted “the use of physical force” required for a misdemeanor crime of domestic violence as defined in
Arkansas law decrees that a person is guilty of first-degree terroristic threatening if:
(A) With the purpose of terrorizing another person, the person threatens to cause death or serious physical injury or substantial property damage to another person; or
(B) With the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to a teacher or other school employee acting in the line of duty.
The Supreme Court‘s decision in Mathis v. United States, 136 S. Ct. 2243, 2248–57 (2016) addressed when and how courts may use the modified categorical approach in the context of federal sentencing. See also Hinkle, 832 F.3d at 574 (noting that although Mathis did not explicitly involve the federal sentencing Guidelines, it was nonetheless controlling in this circuit as concerns application of the modified categorical approach in the context of those Guidelines). This court has observed that Mathis “instructs that there is a difference between alternative elements of an offense and alternative means of satisfying a single element,” and that when a court confronts an alternatively phrased statute, it must first “determine whether listed items in a statute are elements or means.” Id. at 575 (internal quotation marks and citation omitted).
At the sentencing hearing, the district court responded to Rico-Mejia‘s argument that physical force was not an element of the previous conviction because a conviction could be obtained under
The Government‘s contention regarding Castleman must be rejected. By its express terms, Castleman‘s analysis is applicable only to crimes categorized as domestic violence, which import the broader common law meaning of physical force. Castleman is not applicable to the physical force requirement for a crime of violence, which “suggests a category of violent, active crimes” that have as an element a heightened form of physical force that is narrower in scope than that applicable in the domestic violence context. 134 S. Ct. at 1411 n.4. Accordingly, Castleman does not disturb this court‘s precedent regarding the characterization of crimes of violence, and § 5-13-301(a)(1)(A) cannot constitute a crime of violence under
III.
The Government also contends that even if the district court erred in determining that the sixteen-level enhancement applied, that error was harmless because of the district court‘s admonition that it would have imposed the same sentence even if it had sustained Rico-Mejia‘s objection to that enhancement.
The district court indicated that it considered multiple factors in imposing Rico-Mejia‘s sentence, including: (1) the PSR; (2) Rico-Mejia‘s personal characteristics; (3) the
While a district court undoubtedly commits procedural error in improperly calculating the Guidelines range, see United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012), that error can be considered harmless provided that the sentence did not result from the error. United States v. Tzep-Mejia, 461 F.3d 522, 526–27 & n.6 (5th Cir. 2006). One way to demonstrate that the sentence was not imposed as a result of the Guidelines error is to show that the district court considered the correct Guidelines range and subsequently indicated that it would impose the same sentence even if that range applied. Id. at 526 & n.6.
However, where the district court does not consider the correct guidelines range, a determination of harmlessness requires the proponent of the sentence to “convincingly demonstrate[] both (1) that the district court would have imposed the same sentence had it not made the error and (2) that it would have done so for the same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). This court has noted that such a showing involves a heavy burden, requiring the proponent
The Government points to several pieces of evidence in an effort to carry its burden. These include the various considerations listed by the district court in imposing the sentence and the district court‘s statement that it had “considered everything else about this case,” which the Government argues would include Rico-Mejia‘s objection and the suggested sentencing range of 8–14 months contained within it.
Meanwhile, Rico-Mejia points to the facts that (1) the difference between his actual sentencing range and possible lesser sentencing ranges is significant (at least 20 months)2, and (2) his sentence corresponded precisely to the bottom of the incorrectly calculated sentencing range. Rico-Mejia draws a parallel between his situation and the situation of the defendant in United States v. Martinez-Romero, 817 F.3d 917 (5th Cir. 2016), where the lowest end of the improperly calculated guideline range became the defendant‘s precise sentence, an occurrence which the court refused to attribute to “mere serendipity.” Id. at 926. Key to the court‘s decision was the recognition that, despite the district court‘s “multitude of reasons” for its choice of sentence, a review of the record disclosed “no indication that the court‘s decision to select
The facts of this case are similar to those of Martinez-Romero in two key ways. Both cases involve: (1) sentences that correspond precisely to the bottom of an erroneous guidelines calculation; (2) statements by the district court regarding criminal history and willingness to impose sentences regardless of error in guideline calculation.3 The key potential difference between them relates to the presence of evidence to indicate that the court‘s decision to select precisely the bottom of the recommended Guidelines range was independent of the erroneous calculation. In Martinez-Romero there was no such evidence at all. Id. at 926. Here, there is some inferential evidence to be accounted for—although the district court never explicitly stated that it had calculated the Guidelines range that would have applied absent the sixteen-level upward adjustment, it did say that it had considered “everything else about this case,” and Rico-Mejia‘s preferred calculation was included with his objection to the PSR. The combination of these facts could support the inference that the district court was not influenced by the incorrect calculation, but rather chose its sentence from among alternatives solely for the reasons it stated.
This potential distinction notwithstanding, we hold that the Government‘s reference to the district court‘s vague and unparticularized
IV.
On these facts, the Government has failed to meet its heavy burden to convincingly demonstrate that the district court would have imposed the same sentence regardless of its erroneous calculation. We therefore VACATE Rico-Mejia‘s sentence and REMAND to the district court for resentencing.