United States v. Martinez-Paramo

remedies, Vandor, Militello, e.g., Inc. v. then no administrative haust (2nd Cir.2002) required exhaustion is plain- administrative that (holding to considered takings ripe claim be takings tiffs claim permanent- federal was Here, because federal court. ly unripe it the time for because allowed potential require Louisiana does seeking remedy pass). a state to statutory to utilize Louisiana’s plaintiff district court was thus that it had correct provisions providing for administrative jurisdiction, its no dismissal for lack of judicial bringing review an jurisdiction is AFFIRMED. condemnation action state inverse court, required Liberty Mutual was CONCLUSION comply procedures

follow these with prong the second of the Williamson Liberty Because Mutual did not avail County test. adequate procedures itself of state for ob- taining its compensation, takings federal comply its To excuse failure claim is ripe. not Because the time for County’s requirement, Williamson second bringing an inverse condemnation action that Liberty Mutual must show available expired, Liberty Louisiana state court has inadequate or un procedures state were takings Mutual’s claim is un- permanently taking. available at time of Wil ripe. The district dismissal for court’s 196-97, County, at liamson 473 U.S. jurisdiction lack of is AFFIRMED. Liberty has S.Ct. Mutual not ar 3108. were gued procedures that the state inad time

equate or unavailable at the Liberty

taking. And the fact that Mutu claim is

al’s inverse condemnation current

ly Liberty fail barred because Mutual’s

ure remedies as to exhaust administrative

required by law does not mean Louisiana inadequate the state remedies were America, UNITED STATES of alleged at time of the unavailable Plaintiff-Appellee, 93-94 taking. Pascoag, 337 Cf. that Rhode Island’s inverse con (holding unavailable, action in demnation was MARTINEZ-PARAMO, Ruben or futile at the time of the tak adequate, Defendant-Appellant.

ing time-barred though even was at the brought). suit time the federal No. 03-41031. By failing to utilize available state reme- Appeals, Court of United States obtaining Liberty compensation, dies for Fifth Circuit. from prevented meeting

Mutual has itself ripeness requirement the second Wil- Aug. Further, County. because the liamson three-year prescriptive period an in- condemnation action Louisiana

verse

provided La.Rev.Stat. Ann. (LEXIS 2004) has now expired, 13:5111 in concluding

the district court was correct Liberty permanently pre- Mutual has See, ripening. the claim from ever

vented threats, sub- for terroristic nia conviction Lee (argued), James Hill Peck David TX, Houston, deported in 2002. to which he was Atty., sequent U.S. Asst. Plaintiff-Appellee. objections to Over Dahlin, II, Public Federal E.

Roland sentencing, the district the PSR and Crooks, Asst. Defender, Timothy William Pennsylvania held the conviction Darrell (argued), Public Defender Federal After a three-level ac- §a 2L1.2 COV. TX, Houston, Defendant- for Bryan, L. ad- ceptance responsibility downward Appellant. justment, total offense Martinez^-Paramo’s category on his IV

level was 21. Based sentencing range was history, his granted The district court 57-71 months. BARKSDALE, M. EMILIO Before departure downward the Government’s STEWART, Judges. Circuit and GARZA Martinez-Paramo, motion and sentenced alia, to 41 months. inter BARKSDALE, RHESA HAWKINS Judge: Circuit II. chal- Ruben Martinez-Paramo’s For presents two issues. sentence, pri- and his conviction lenge to challenge to his con- acknowledges He his whether, for sentence marily at issue is fails; record, cannot on this viction Pennsyl- purposes, his sentence. challenge his decide of- the misdemeanor conviction for vania requisite is a threats fense of terroristic A. § 2L1.2 of the violence” under

“crime of record is not The Sentencing Guidelines. conviction, his Martinez- Concerning He ac- that issue. to decide sufficient 1326(b)(1) § and Paramo claims 8 U.S.C. forecloses his knowledges precedent our light Ap in the unconstitutional are guilty-plea to his challenge constitutional 466, 120 Jersey, v. New 530 U.S. prendi conviction; AFFIRM the conviction. We (2000). 2348, L.Ed.2d 435 He 147 S.Ct. sentence; and REMAND VACATE admits, however, foreclosed that relief is resentencing. States, v. United by Almendarez-Torres 1219, 224, L.Ed.2d 140 118 S.Ct. 523 U.S. I. Dabeit, (1998). States v. E.g., United 350 Martinez-Paramo, 2003, a Mex- early (5th Cir.2000), de 979, cert. 984 231 citizen, know- being ican nied, 121 S.Ct. 531 U.S. in the United unlawfully present ingly and (2001), on other overruled L.Ed.2d deportation, vio- previous after a States Reyna, by, United States grounds (b). and The lation of 8 U.S.C. Cir.2004) (en banc). (5th The F.3d 344 eight mandate a base-level Guidelines possi it for only preserve is raised issue 2L1.2(a) offense. U.S.S.G. Supreme Court. review the ble (2002). Guidelines Pursuant 2L1.2(b)(l)(A)(ii), inves- presentence B. (PSR) recommended tigation report sentence, Martinezr- Concerning his be increased sentence Martinez-Paramo’s previous his conviction Paramo claims deportation previous for his by 16 levels threats is Pennsylvania for terroristic for a “crime following a criminal conviction court’s § 2L1.2. The district (COV). a COV claimed COV was violence” clear reviewed findings of fact are July Pennsylva- error; interpretation application gorical its approach to interpret COV 18 Guidelines, E.g., 924(e)). de novo. Restated, U.S.C. 2L1.2 Charles, 301 F.3d 312-13 16-level depends COV enhancement “upon (5th Cir.2002) (en banc) (citation omitted). predicate whether the offense has the use of force as an element of the crime”. Under Vargas-Duran, (I) federal, means an offense under Cir.2004) (en banc) (citations state, or local law that has as an ele- omitted) (holding required use of force un- use, ment the or threat- intentional). §der 2L1.2 must be 'physical ened use force another; For examining the elements of the

(II) Pennsylvania “terroristic murder, threats” misde- manslaughter, includes kid- offense, meanor napping, assault, the version of aggravated the statute forcible sex (including offenses under which sexual abuse of a mi- Martinez-Paramo was con- nor), arson, robbery, extortion, extor- victed states: credit, tionate extension of burglary and person A commits the crime terroris- of a dwelling. tic person communicates, threats if the l(B)(ii) Application U.S.S.G. directly indirectly, Note either or a threat to: added). (emphasis (1) Because terroristic any commit crime violence with threats is not an offense enumerated in another; (2) intent to terrorize cause II, part Pennsylvania evacuation of a building, place of assem- conviction for such can threats be a COV bly facility or public transportation; only if use, it “has as an element (3) or otherwise public cause serious in- or threatened physi use of convenience with reckless disregard of cal force [the another”. of] the risk of causing such terror or incon- added). (emphasis Id. See United States venience. 317, v. Rodriguez-Rodriguez, 323 F.3d 2706(a) (2003) 18 Pa. Cons.Stat. (empha- (5th Cir.2003) 318-19 (analyzing conviction added). COV, sis A as used at separately issue part each not, 2706(a)(1), defined definition); Rayo- Pennsylvania event, In any statute. Valdez, 314, Cir.), 302 F.3d 316-319 because the terroristic threats statute con- denied, cert. 537 U.S. 123 S.Ct. tains one subsection which arguably quali- (2002) 154 L.Ed.2d 645 (holding offense as a COV and two subsections which fies specifically enumerated as COV need not not, arguably do the Government contend- involve, force). element, as an use of ed in district court appeal and on that we Because the COV definition in can beyond look the fact of conviction to cludes the “as an element” phrase, a cate determine the elements of the statute to gorical approach employed; in other guilty. words, the facts underlying a conviction that, The Government is correct al Instead, are not considered. only we “look though statutory definition of an of to the fact of statutory conviction and the fense primary guide, is our categorical definition prior offense to determine approach preclude “does not looking be whether a qualifies conviction as a yond the fact of conviction in all predicate situa offense for sentencing enhance Allen, tions”. United purposes”. ment Rodriguez-Rodriguez, (5th Cir.2002). 323 F.3d at 318-19. Taylor Taylor, See also States, 575, 602, Supreme U.S. Court S.Ct. examined whether the de 109 L.Ed.2d (using cate- fendant’s “burglary” conviction was a un- 924(e) complaint states: Mar- the sen The and held der 18 U.S.C. violating tinez-Paramo was accused beyond the mere go court could tencing statute, above-quoted Pennsylvania range of in a “narrow conviction fact of Pa. 2706(a) (again, has actually required jury was cases where CoNS.Stat. subsections); threaten “[he] three and did generic burgla all the elements of to find to commit a crime violence with the 602, 110 Tay S.Ct. ry”. 495 U.S. added.) (Emphasis intent to terrorize”. statute that burglary a hypothesized lor arresting The also includes the entry into an automobile includes both affidavit, detailing‘the under- officer’s facts guideline pro building, a in which into lying the arrest. qualify did not automobile-entry vided that enhancement, building-entry but for an appears sheet similar to situation, Taylor a held Id. For such did. two judgment of conviction and lists that, purposes, the sen for enhancement plead- charges which Martinez-Paramo to look to the tencing permitted court was each, ed and the sentence for in- instructions, they jury if threats; indictment cluding charge one terroristic charged the defendant not, however, showed: cite the section num- does jury building; and the burglary of a of the terroristic threats statute ber entry find into the necessarily had to language indicating include which of the to convict. Id. building may three subsections have been involved. (in- sum, extension, complaint In the criminal pleads a defendant By where describing offense, cluding the the attached affidavit have allowed guilty to an we conduct) indicates that to the indictment sentencing court to look ultimately may have of the statute to the elements to determine with, to, charged pleaded guilty been guilty. E.g., pleaded defendant which the 2706(a)(1) (“threat § com- violating Landeros-Gonzales, 262 States United intent Cir.2001) any mit crime of violence with (5th (treating sepa F.3d another”), rather than subsection terrorize comprehensive a rately subsections of (a)(2) (a)(3). is needed. or More looking at indictment criminal statute and purposes). sentence court noted at sen- Although the district Calderon-Pena, F.3d tencing complaint the criminal (5th Cir.2003), reh’g en vacated document, it did not decide charging a not (5th Cir.2004), banc, followed 362 F.3d 293 were the documents the record whether where Taylor and relied on the indictment the elements of sufficient to determine disjunc contained of conviction the statute Mar- threats statute which terroristic court has not elements. Our en banc tive Instead, at guilty. tinez-Paramo Calderon-Pena; in the decided it relied on urging, the Government’s Landeros-Gonzales, it light Taylor (3d Ashcroft, 283 F.3d 166 Cir. Bovkun v. beyond the fact of convic proper is to look 2002), of the and held all three subsections (§ 2706(a)) elements of the ter- tion to determine the fit Pennsylvania statute to which Martinez- definition, threats statute thereby obviating roristic § 2L1.2 COV pleaded guilty. Paramo parse need to the statute’s subsections. a of the prior not contain an informa- addressed version The record does Bovkun it to be statute and held charging Martinez-Par- terroristic threats tion or indictment 16(a), § threats offense. a under 18 U.S.C. amo with the terroristic alia, as, “an inter such a crime Instead, only the criminal com- defines it contains that has as an element offense plaint and a sheet. physi- applicable deciding use or threatened use not whether a con- or against property cal force viction under the version at issue involves added.) (Emphasis As dis- another”. a Although COV. Bovkun noted that the cussed, issue, § 2L1.2 under Guidelines subsequent amendment to the statute did against person; the force must be not appear meaning to alter the 16(a), it can also 18 U.S.C. be provision, that statement is dictum. Id. at property. assuming, arguendo, Even 16(a) sufficiently COV definition is being inapplicable, Bovkun’s similar to 2E1.2’s to consider Bovkun turn to whether it proper to look to the relevant, Bovkun is nevertheless distin- (in record) to deter guishable because Martinez-Paramo was mine whether Martinez-Paramo’s prior convicted under after its conviction is a COV under Guidelines being significantly amended 1999 had 2L1.2. changed meaning. its Cir.2003) II), CTurner previous statute did not break the we refused to consider the defendant’s subsections; rather, separate offense into charging instrument order to determine provided: whether his conviction was a COV A person of a misdemeanor of 4B1.2(a)(2), under Guidelines because degree the first he threatens to com- if the defendant pleaded guilty had to a less any mit crime violence with intent to er offense. Because “a may district court terrorize another or to cause evacuation rely on a document without a building, place assembly, or facili- first establishing that charged crime ty public transportation, or otherwise was the same crime for which the defen inconvenience, public to cause serious convicted”, dant was id. (quoting United in disregard reckless of the risk of caus- Spell, 44 F.3d 940 ing such terror or inconvenience. Cir.1995)) and because there was no docu (1998) § (emphasis 2706 Pa. Cons.Stat. ment charging Turner with the lesser of added). pre-amendment Bovkun read the fense, the indictment could not be relied requiring statute as a threat to commit a upon to determine the elements for which situations; COV each the three (In convicted, he was id. court considered the subsequent list to be (5th Cir.2002) the different mens rea which could accom- (Turner I), infra, discussed we had re pany requisite the actus reus of a threat to manded for review of charging the instru commit a COV. 283 F.3d at 166. ment to determine whether defendant’s In stark contrast to Bovkun’s interpre- COV). Allen, conviction was a See also statute, tation of the earlier the amended 282 F.3d at (holding 342-43 district court statute issue clarifies that the offense is Taylor’s exceeded in relying limits on a by committed communicating a threat to police report to prior determine whether a act in any ways: of three to commit a conviction was a drug “serious offense” COV; to building; cause evacuation of a or 924(e)(2)(A)(ii), under 18 U.S.C. where otherwise to cause public serious inconven- the indictment did not ques answer the Restated, ience. the amended statute sets tion). out separate offenses; three only the first is a “threat The criminal complaint to commit” a COV. Because states Martinez- Bovkun interpreted the Paramo threatened to statute as commit a with COV requiring terrorize, the “threat to commit” a COV the intent to and the facts stated every conviction, terroristic threats is the affidavit support the in- offense can, 2706(a)(1); record, the the if it docu- rec being under volved reflect, however, whether the ments, others, may ord does as as well which estab- Taylor sufficient under complaint legally to lish which elements Martinez-Paramo that Martinez- II to determine and Turner Not did the pleaded guilty. Govern- particular to a sub pleaded guilty Paramo argument ment at oral that an infor- state 2706(a) again, a misdemean- section — exists, plea mation the agree- but also that Pennsylvania courts regard, In this or. colloquy ment are available. plea complaint alone suffi held have Upon being supplemented, the record the guilty plea a valid or support to cient district should address whether the conviction, an in the infor even absence are new documents sufficient establish indictment; but, “[ojrdinarily, mation prior Pennsylva- that Martinez-Paramo’s requirement of formal notice satis the nia is a conviction terroristic threats the crim receipt the fied defendant’s doing so, COV under 2L1.2. In v. information”. Commmonwealth inal whether, must if district court determine Hatchin, (Pa.Super.1998) 709 A.2d guilty (holding criminal sufficient 2706(a)(1) (COV subsection), term if certain notice support conviction meets in that “crime of violence” as used subsec- Clark, requirements); Commonwealth tion definition in satisfies COV Guide- 366, 511 A.2d Pa.Super. Again, is not lines 2L1.2. defined plea con (holding same text). Pennsylvania in the statute. complaint in In addition to the criminal We well understand Martinez-Paramo’s record, information or indictment an objecting being given to the Government’s record) (neither in which may exist provide requisite a second chance under another charged Martinez-Paramo documentary support for the claimed COV may statute or not have portion have, noted, As howev enhancement. he specified under subsection er, In remanded similar situations. fact, charged. the Government stated I, 351, an intervening Turner 305 F.3d at an argument at oral information does change had repudiated in law district exist. court’s that the conviction holding basis Therefore, cannot this we tell from rec- under at issue was COV Guidelines the criminal was ord whether 4B1.2; could not determine whether we when used definition, charged the the offense met be or if there was another document in cause was not the document charge(s) against him.

which stated the Therefore, the record. we remanded not reflect the Because the record does the the district court determine whether pleaded guilty, he elements which the count defendant convict for cannot determine whether Martinez-Para- requirements. ed met the enhancement’s mo’s conviction was a 2L1.2 COV. We Similarly, in v. Banda- however, Id. United States decide, an infor- do whether (5th Cir.1999), Zamora, mation or indictment is the document properly which could establish he in district court to we remanded the pleaded guilty particular to a subsection of against judgment clude court de the state initially That the statute. task remains his in order to determine whether fendant resentencing. the district on court the previous requisite sentence was felony” length qualify “aggravated as an Accordingly, we remand to the district 2L1.2(b)(1)(A). supplement the Government to Guidelines Moreover, sentencing, reasons, at the following Govern- I respectfully dissent justified ment was at least somewhat in majority’s from the determination to re- believing expand that it did not need to the mand the case for the Government to take court adopted record after the district another bite apple. Bovkun position ap- Government’s appeal, On the Government strenuously plied and therefore the entire terroristic argues that on remand it should be al- Nevertheless, threats statute was a COV. lowed to buttress its claim that the crime already the Government should have ob- of violence sentence applies tained and introduced all of the relevant in this case. When the Government initi- documents into the record. prosecution Martinez-Paramo, ated its analysis, In the final remand is proper. Ashcroft, Bovkun v. rely decided to on especially given This true ongoing (3d Cir.2002), 283 F.3d 166 as the primary by development applica our court of the basis for its sentence enhancement argu- tion of the definitions in the Guide ment. Bovkun addressed a different ver- See, on-Pena, e.g., Colder lines. sion of the terroristic threats statute than (2004 granting banc); rehearing en — is at issue here. It held that a crime of (2004 Vargas-Duran, 356 F.3d 598 —en violence under 18 U.S.C. is defined Charles, 301 F.3d 309 banc); (2002 —en as, “an offense that has as an element the banc); Chapa-Garza, use, or threatened use of (5th Cir.2001) (denial F.3d 479 of rehear physical force against or prop- banc) (Barksdale, J., ing en dissenting). erty of another.” Under U.S.S.G. the sentencing guideline here, at issue III. force against must be a person, while un- reasons, foregoing For the Martinez^ 16(a), der it can also be proper- AFFIRMED; Paramo’s conviction is his ty. Bovkun clearly distinguishable VACATED; sentence is and this matter is therefore it does not control the outcome resentencing REMANDED for consistent agree this case. I majority opinion. with this here that the district court in erred hold- PART; AFFIRMED IN IN VACATED ing that supported Bovkun the Govern- PART; and REMANDED. ment’s crime of violence sentence enhance- ment. STEWART, CARL E. Judge, Circuit I depart from

concurring part, dissenting majority, part: concluding that a supplementa- remand for agree I majority with the that we should tion of the proper record is in this case. affirm the conviction. I also agree that Unlike the cases cited the majority appellate record this case does not where we have remanded the sentencing clearly allow to paragraph us discern what enhancement issue to the district court for of 18 Pa. Cons.Stat. 2706 Martinez-Para- additional findings, there has in- been no under, mo was convicted and that tervening case law whatsoever between does not define crime of violence. I ac- the sentencing hearing and appeal this Turner, that United States v. knowledge Cir.2002) (“Turner that would 349, require remand as a matter of /”), Though law. Fifth and Circuit case law re- (5th Cir.2003) (“Turner II”), garding application allow crime of remands in certain I violence provisions circumstances. do remains I Turner or Turner agree unsettled, that either the state of the case law had no II command that we do so bearing here. For the on the litigation Government’s de- I hold the Government cisions. would 1,# and on behalf of JOHN DOE to the proof it offered

the measure and a of Others themselves Class Sim theory it rested legal district court and ilarly Situated; # John Doe for and remanding upon. persuaded I am not and a on behalf of themselves Class of supplementa- case for an unconditional Similarly Situated; Texas here. Others of the record is warranted tion Bureau; Farm The American Farm majority’s remand Significantly, Federation; Bureau Doe # John large the no limits on how Govern- places Plaintiffs-Appellees, sentencing bite at the ment’s additional “we may majority states v. apple be. court for the Gov-

remand to the district VENEMAN, in her Ann M. official ca record, if it supplement ernment Secretary pacity as of the United documents, can, as as well Department Agriculture; States others, ele- may establish to which Services; Animal and Plant Wildlife pleaded guilty.”1 ments Service; Inspection Health added.) in- an unlimited (Emphasis Such Department Agriculture, De States by the facts of this vitation is unwarranted fendants-Appellants, Moreover, if we take the Gov- case. even that the indictment or ernment at its word Institute, Animal Protection Intervenor are charging documents available other Defendant-Appellant. remand, upon the sen- the district Further tencing inquiry does not end. 03-50288, Nos. 03-50919. of the statute and examination parsing Appeals, United States Court of a match pertinent cases search Fifth Circuit. the elements of the crime' Mar- between crime guilty to and the pled tinez-Paramo Aug. inevitable. Another violence statute are court’s ultimate de- appeal of district probable. On this equally

termination is

record, I affirm the conviction and would sustain

hold that the Government failed to proof to show that Martinez-

its burden qualifies conviction under

Paramo’s

as a crime of violence U.S.S.G. (B)(ii)(I). comment Because error, I

district court committed reversible vacate the sentence and remand

would findings. consistent with our part I and dissent

Accordingly, concur

in part. majority opinion See at 805.

Case Details

Case Name: United States v. Martinez-Paramo

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 4, 2004

Citation: 380 F.3d 799

Docket Number: 03-41031

Court Abbreviation: 5th Cir.