UNITED STATES оf America, Plaintiff-Appellee, v. Jose Trinidad MALDONADO-LOPEZ, Defendant-Appellant.
No. 07-2195.
United States Court of Appeals, Tenth Circuit.
Feb. 27, 2008.
518 F.3d 1207
Mr. Martin has offered no explanation whаtsoever for his fugitive status, and it appears he has absconded. As a matter of policy, we dismiss the appeal to discourage other petitioners from fleeing to evade the finality of a lawful deportation order.
Accordingly, the appeal is DISMISSED.
Larry Gomez, United States Attorney, and Amanda Gould, Assistant United States Attorney, Las Cruces, NM, for Plaintiff-Appellee.
Before BRISCOE, MCKAY, and MCCONNELL, Circuit Judges.
MCKAY, Circuit Judge.
Defendant Jose Trinidad Maldonado-Lopez pled guilty to an information charging him with illegally reentering the United States following a prior deрortation. Before the sentencing hearing, Defendant objected to a four-level enhancement for having three prior misdemeanor convictions involving crimes of violence. The district court reviewed the two available transcripts and three judgments for Defendant‘s prior convictions and overruled his objections. The district court then considered both the Guidelines, including the enhancement, and Defendant‘s criminal history category before sentencing Defendant to a twenty-four-month prison term. Defendant appeals the district court‘s sentenсe, arguing that the district court erred when it enhanced his offense level by four levels because the elements of his prior misdemeanor convictions do not meet the crime of violence definition for this section of the Guidelines.
We have jurisdiction over this appeal under
Under the Guidelines, “three or more convictions for misdemeanors that are crimes of violence” enhance a sentence for unlawful entry by four levels.
“When determining whether a prior conviction is a crime of violence, the Supreme Court has instructed sentencing courts to take a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those conviсtions.” United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir.2005) (internal quotation marks omitted). However, “[i]f the statute is ambiguous, or broad enough to encompass both violent and non-violent crimes, a court can look beyond the statute to certain records of the prior proceeding.” United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir.2001). Specifically, “a sentencing court may look to the charging papers, judgment of conviction, plea agreement or other statement by the defendant for the record, presentence report adopted by the court, and findings by the sentencing judge.” United States v. Bennett, 108 F.3d 1315, 1317 (10th Cir. 1997) (internal quotation marks omitted); see also Ruiz-Rodriguez, 494 F.3d at 1275; Perez-Vargas, 414 F.3d at 1284.
Defendant‘s three prior misdemeanor convictiоns were all for harassment under Colorado law.
A person commits harassment in Colorado under Section 18-9-111(1)(a) if, “with intent to harass, annoy, or alarm anоther person,” he “[s]trikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact.”
The district court was therefore correct to examine court documents from Defendant‘s three prior harassment convictions. The only documents available for the three prior convictions were the judgments and some of the plea transcripts.1
The colloquy in two of the prior conviction plea transcripts, although incomplete and sloppy, did provide a sufficient factual basis on which the sentencing judge could rely because they indicated that Defendant engaged in domestic violence, a violent crime. However, there was no transcript, charging document, or any other court document for the third prior conviction, other than the judgment, on which the sentencing judge was allowed to rely to determine if the judgment listed was for a violent or nonviolent crime. The
Because we have concluded Section 18-9-111(1)(a) does not necessarily include a crime of violence, a conviction under that statute is not categorically a crime of violence under
Accordingly, we REVERSE the district court‘s application of the enhancement and REMAND for re-sentencing.
McCONNELL, Circuit Judge, concurring.
This Circuit‘s precedent has become confused regarding when to use the pure “categorical method,” when to use the “modified categorical method,” and when to use the “factual approach” in determining when various sentencing enhancements apply on account of prior convictions. When a sentencing enhancement is framed in terms of the statute of conviction, the categorical approach applies and the sentencing court must look not to the particular facts of the prior conviction but to the terms of the underlying statute. United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir.2005). Even within the scope of the categorical approach, however, the Supreme Court has recognized an “exception” for cases where the jury was actually required to find all the elements of the generic offense in order to convict, but where it is not clear from the statute itself which version of the crime the defendant was charged with. Taylor v. United States, 495 U.S. 575, 602 (1990); Shepard v. United States, 544 U.S. 13, 17 (2005). In such а case, the sentencing court may consult the indictment, jury instructions, plea colloquy transcript, and written plea agreement, if these exist.
For example, in Taylor the defendant would receive an enhanced sentence if he had committed a “violent felony,” a term defined to include “burglary,” which thе Court interpreted to encompass what it called “generic burglary.” 495 U.S. at 589-599. Because the state in which Taylor had committed his burglary employed a broader definition of the crime, it was necessary to “go beyond the mere fact of conviction” to determine whether the jury had been required “to find all the elements of generic burglary in order to convict.” Id. at 602.
In this case we are applying
Having reached that conclusion, however, I do not agree that we are free to “deviate from the categorical approach” to examine court documents indicating that the defеndant engaged in domestic violence. The relevant enhancement statute here, unlike that in Taylor, applies only when the statute under which the defendant was convicted “has as an element” the use, attempted use, or threatened use of physical force against the person of another. Id. cmt. 1(B)(iii). What defendant actually did is irrelevant to whether the statute has such an element. The elements are the elements, and they can be determined only by reading and interpreting the statute itself. I therefore believe that in this case, we must apply the pure categorical method, not the “modified” categorical method of Taylor and Shepard.
Indeed, the Office of Legal Counsel at the Department of Justice takes this view of
Unfortunately, our post-Shepard opinions on this issue—including some I have written—are inconsistent on this point. In United States v. Martinez-Hernandez, 422 F.3d 1084, 1087-88 (10th Cir.2005) (McConnell, J.), we discussed the same language in § 2L1.2 and said: “‘That has as an element’ asks us to look at the elements of the statute of conviction . . . [it does not] direct[] our attention to the underlying facts.” See also United States v. Herrera-Roldan, 414 F.3d 1238, 1240-41 (10th Cir.2005) (McConnell, J.) (same). On the other hand, in United States v. Hernandez-Garduno, 460 F.3d 1287 (10th Cir.2006) (McConnell, J.) we wrote the opposite—that even if an assault statute‘s elements did not include the use of force, “[i]f the charging documents, plea agreement, transcript of a plea colloquy, or sen
It thus appears our Circuit has been overly casual in considering what role charging papers and plea agreements play in determining the elements of a crime. At some point we will have to resolve the contradiction in our case law and determine whether the “modified categorical approach” can properly be used in determining the elements of a state-law offense. In this case, however—as the majority concludes—the modified categorical method reaches the same conclusion as the pure categorical method. Because the choice of methods is immaterial to the result, this case is not the occasion to clarify our approach.
I respectfully concur.
MCCONNELL
CIRCUIT JUDGE