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, Fifth Circuit.
June 1, 2017
Donna F. Coltharp, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender‘s Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.
Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
CARL E. STEWART, Chief Judge:
IT IS ORDERED that the petition for panel rehearing is GRANTED and our prior panel opinion, United States v. Rico-Mejia, 853 F.3d 731 (5th Cir. 2017), is WITHDRAWN. The following opinion is SUBSTITUTED therefor.
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.” See
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, — U.S. —, 134 S.Ct. 1405, 1414, 188 L.Ed.2d 426 (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
(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, — U.S. —, 136 S.Ct. 2243, 2248-57, 195 L.Ed.2d 604 (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 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 (noting that “Courts of Appeals have generally held that mere offensive touching cannot constitute the ‘physical force’ necessary to a ‘crime of violence‘” and clarifying that “[n]othing in today‘s opinion casts doubt on these holdings, because ... ‘domestic violence’ encompasses a range of force broader than that which constitutes ‘violence’ simpliciter“). Accordingly, Castleman does not disturb this court‘s precedent regard-ing the characterization of crimes of violence, and
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 to “point to evidence in the record that will convince [the appellate court] that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error.” Richardson, 676 F.3d at 511 (quoting Ibarra-Luna, 628 F.3d at 717, 718) (internal quotation marks omitted). As there is no explicit or particularized statement from the district court showing that it calculated or considered the correct Guidelines range, our harmless error analysis must take place in the more demanding Ibarra-Luna scenario.
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 exact low and high ends of the improper range was independent of the erroneous calculation that called the court‘s attention to that range in the first instance.” Id. Accordingly, the court‘s choice to impose a guidelines sentence at precisely the bottom of the range was found to be influenced by the erroneous Guidelines calculation, even though the district court stated several times that it would have imposed the same sentence regardless of error. Id. at 925.
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 statement as the basis for a speculative inference that the district court considered alternative ranges that it did not calculate is insufficient to carry its
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.