UNITED STATES of America, Plaintiff-Appellee, v. Merlin MARCIA-ACOSTA, aka Marcos Ramos Garcia, Defendant Appellant.
No. 13-10475.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 12, 2014. Filed March 23, 2015.
IV.
For the reasons explained above, we AFFIRM the district court‘s denial of summary judgment on witness immunity grounds.
Lacy Cooper (argued), Assistant United States Attorney, John S. Leonardo, United States Attorney, and Mark S. Kokanovich, Deputy Appellate Chief, United States Attorney‘s Office, Phoenix, AR, for Plaintiff-Appellee.
Before: RAYMOND C. FISHER, MARSHA S. BERZON, and MORGAN CHRISTEN, Circuit Judges.
OPINION
BERZON, Circuit Judge:
Merlin Marcia-Acosta was found guilty under
We hold that the district court‘s application of the modified categorical approach contravened the principles underlying Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and so vacate Marcia-Acosta‘s sentence.
I.
Marcia-Acosta is a citizen of Honduras. He unlawfully entered the United States for the first time in 1991. He had fled El Salvador, where he was living at the time, because of that country‘s civil war. In 2001, Marcia-Acosta sought asylum. His application was denied in 2002.
Marcia-Acosta was indicted in late 2006 for “intentionally, knowingly or recklessly caus[ing] a physical injury” to another “using a metal bar, a deadly weapon or dangerous instrument,” in violation of Arizona‘s aggravated assault statute,
THE COURT: Mr. Colon, any factual basis?
MR. COLON: Your Honor, back on December 8th, 2006, at 400 South 9th Avenue—it was in Phoenix, Arizona, Maricopa County—[Marcia-Acosta] got into an altercation with the victim. At this point he grabbed a metal bar. He hit the victim on the head, and he caused an injury to the victim‘s skull. And he did that intentionally.
THE COURT: Any additions or corrections for the record?
[PROSECUTOR]: No, Your Honor.
THE COURT: The Court finds the defendant‘s plea is knowingly, intelligently, and voluntarily made. There is a factual basis for it. Please accept it entered of record.
Marcia-Acosta was sentenced to two-and-a-half years in prison. After serving half his sentence he was deported, in April 2008.
Marcia-Acosta reentered the country the following year. An immigration official later encountered Marcia-Acosta and learned that he had recently entered the country without permission. Marcia-Acosta was then taken into federal custody, and indicted for illegal reentry after deportation, in violation of
The initial Presentence Investigation Report (“PSR“) proposed a four-level sentencing enhancement for Marcia-Acosta‘s prior aggravated assault conviction. The
The probation department subsequently amended Marcia-Acosta‘s final PSR to include a 16-level sentencing enhancement, relying upon the change of plea transcript provided by the government. In light of this enhancement and Marcia-Acosta‘s prior criminal history, the final PSR calculated Marcia-Acosta‘s Guidelines range as 77 to 96 months, and recommended a sentence of 77 months. Marcia-Acosta objected to the final PSR.
In his sentencing hearing, Marcia-Acosta reiterated his objection to the enhancement, but the district court rejected it, finding that the 2007 change of plea transcript made “clear” that Marcia-Acosta‘s prior aggravated assault “satisfies the generic definition,” and thus “justifie[d]” the 16-level sentencing enhancement. The district court adopted the PSR‘s Guidelines calculation and imposed a sentence of 77 months in prison. Marcia-Acosta timely appealed.
II.
We review de novo a district court‘s determination that a prior conviction constitutes a “crime of violence” under the Federal Sentencing Guidelines. See United States v. Quintero-Junco, 754 F.3d 746, 749 (9th Cir.2014) (citing United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1243 (9th Cir.2014)).
The Federal Sentencing Guidelines generally apply a 16-level sentencing enhancement to a defendant convicted under
- Intentionally, knowingly or recklessly causing any physical injury to another person; or
- Intentionally placing another person in reasonable apprehension of imminent physical injury; or
- Knowingly touching another person with the intent to injure, insult or provoke such person.
In United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir.2009), the government appealed the district court‘s ruling that Esparza-Herrera‘s prior conviction for aggravated assault, in violation of
It is at the next stage of inquiry, into the impact of the prior conviction on the Guidelines calculation, that the parties’ disagreement arises: The government and Marcia-Acosta dispute whether the district court, applying the modified categorical approach, correctly concluded that Marcia-Acosta had been convicted of committing assault intentionally under
III.
A.
In Descamps, the Supreme Court clarified that the modified categorical approach serves a “limited function,” “effec-tuat[ing] the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant‘s conviction.” Descamps, 133 S.Ct. at 2283. To determine whether a statute is divisible, we consider whether
Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir.2014), recently held that a disjunctive statute is divisible “only if it contains multiple alternative elements, as opposed to multiple alternative means.” More specifically, under Rendon, “[o]nly when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.” Id. As only two of the three mental states listed in the disjunctive in
Marcia-Acosta did not argue in his opening brief that Arizona‘s aggravated assault statute is not divisible. Accordingly, we conclude that Marcia-Acosta waived any argument concerning the statute‘s divisibility. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.2005) (“Generally, an issue is waived when the appellant does not specifically and distinctly argue the issue in his or her opening brief.“).4 We thus assume, without deciding, that Arizona‘s aggravated assault statute does state alternative mens rea elements, is therefore divisible, and so must be analyzed under the modified categorical approach.
B.
Our question, then, is whether the district court correctly applied the modified categorical approach when it relied upon the single factual-basis statement made by Marcia-Acosta‘s attorney during the 2007 plea colloquy to conclude that Marcia-Acosta‘s prior conviction qualified as a crime of violence. We hold that it did not.
When the statute of conviction is divisible, “the modified categorical approach permits sentencing courts to consult a limited class of documents ... to determine which alternative formed the basis of the defendant‘s prior conviction.” Descamps, 133 S.Ct. at 2281. These documents include “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). “The court can then ... compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps, 133 S.Ct. at 2281.
Consideration of only “the elements of the crime of conviction” is the pivotal concept in applying the modified categorical analysis. Descamps emphasizes that a court cannot use the modified categorical approach “to try to discern what a trial
In this case, two of the available Shepard-approved documents—the charging documents and plea agreement—refer generally to Arizona‘s aggravated assault statute, and so provide no insight as to the mens rea aspect of
Sentencing courts may review the plea colloquy or other “comparable judicial record.” Shepard, 544 U.S. at 26. Shepard emphasizes, however, that “any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes.” Id. at 23 n. 4. The focus of a court‘s examination of the transcript of the plea colloquy therefore must be “not to determine ‘what the defendant and state judge must have understood as the factual basis of the prior plea,‘” Descamps, 133 S.Ct. at 2284, 133 S.Ct. 2276 (emphasis added) (quoting Shepard, 544 U.S. at 25), but to assess “whether the plea had ‘necessarily’ rested on the fact identifying the [offense] as generic,” Shepard, 544 U.S. at 21 (quoting Taylor, 495 U.S. at 602). So restricting the examination of plea colloquies assures that a sentencing court not “substitute ... a facts-based inquiry for an elements-based one.” Descamps, 133 S.Ct. at 2293.
This focus is particularly critical in the plea-bargaining context. As Descamps specifically cautioned, factual admissions made during a plea hearing may be “downright wrong,” because the defendant “often has little incentive to contest facts that are not elements of the charged offense,” and “the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.” Id. at 2289. When a defendant pleads guilty to a crime, “he waives his right to a jury determination of only that offense‘s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.” Id. at 2288.5
Consistent with these admonitions, our post-Descamps decisions have recognized that sentencing courts’ review of plea colloquies or other “comparable judicial record[s],” Shepard, 544 U.S. at 26, for modified categorical approach purposes must be appropriately circumscribed to identify the elements pled to, not the underlying facts. United States v. Quintero-Junco, 754 F.3d at 752, for example, held that a district court “misap
Similarly, in United States v. Cabrera-Perez, 751 F.3d 1000 (9th Cir.2014), the defendant, like Marcia-Acosta, argued that his prior aggravated assault conviction under
The charging document and plea agreement in this case, unlike those in Quintero-Junco or Cabrera-Perez, shed no light on whether Marcia-Acosta‘s prior conviction meets the generic elements of aggravated assault. Rather, they merely restate the disjunctively phrased list of mens rea elements in the cross-referenced statute,
Indeed, this case clearly illustrates the concerns underlying Descamps. As a matter of state law, Marcia-Acosta‘s conviction under
Moreover, absent any narrowing language in the charging documents or plea agreement, relying on Colon‘s statement that Marcia-Acosta committed the assault “intentionally” is no different than relying on a statement to the same effect made by a defendant while on the stand during a trial. The latter approach is clearly foreclosed by Descamps as an impermissible “look behind [the defendant‘s] conviction in search of record evidence that he actually committed the generic offense.” Id. at 2293. In the trial context, the government would be required to prove that the jury necessarily found that Marcia-Acosta had committed a crime intentionally or knowingly, rather than recklessly; demonstrating that there was testimony to that effect would not suffice. That Colon made a statement concerning Marcia-Acosta‘s mens rea as part of the factual basis during the plea colloquy rather than at trial does not convert an improper fact-based inquiry into an elements-based one.
To support the district court‘s application of the modified categorical approach, the government points only to our decision in United States v. Smith, 390 F.3d 661 (9th Cir.2004), amended by 405 F.3d 726 (9th Cir.2005). Smith reviewed the district court‘s determination that the defendant‘s prior convictions under California‘s burglary statute,
As it turned out, the abstract of judgment provided no further clarity as to the elements of Smith‘s conviction. The district court therefore relied only on the transcript of the plea hearing, in which the prosecutor stated, as part of the factual basis for the burglary charge, that Smith “unlawfully” entered “a dwelling.” Id. at 664.
Smith is indeed in tension with our decision today. But the analysis conducted by Smith—applying the modified categorical approach to the unlawful entry element—is contrary to Descamps, which held that
Moreover, Smith was decided prior to Descamps, which more clearly than earlier cases limited the extent to which courts may satisfy the modified categorical approach by looking at the “facts” of prior convictions. Our approval in Smith of the district court‘s consideration of statements by the defense counsel during the plea colloquy—for instance, that Smith had “entered his former home” and that the “codes were changed,” 390 F.3d at 665 (internal quotation marks omitted)—makes clear that Smith engaged in the very type of “fact-based” analysis that Descamps proscribes. In other words, “[i]nstead of reviewing documents like an indictment or plea colloquy only to determine which statutory phrase was the basis for the conviction,” Smith “look[ed] to those materials to discover what the defendant actually did.” Descamps, 133 S.Ct. at 2287 (internal quotation marks omitted). Smith therefore is “clearly irreconcilable” with Descamps, and is no longer controlling. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc).
We acknowledge that our conclusion here is in tension with the Third Circuit‘s decision in United States v. Marrero, 743 F.3d 389 (3d Cir.2014) (”Marrero II“). In Marrero II, the defendant appealed the district court‘s finding that his prior conviction under Pennsylvania‘s simple assault statute,
Before Descamps was decided, the Third Circuit affirmed [then] granted Marrero‘s petition for writ of certiorari, vacated the Third Circuit‘s judgment, and remanded for further consideration in light of Descamps. Id. at 393; see also Marrero v. United States, — U.S. —, 133 S.Ct. 2732, 186 L.Ed.2d 930 (2013). The Third Circuit once again affirmed, repeating essentially verbatim its earlier holding that the district court had “properly examined” Marrero‘s plea colloquy to “determine whether he pleaded guilty to intentional, knowing, or reckless assault.” Marrero II, 743 F.3d at 397; compare United States v. Marrero, 677 F.3d 155, 162 (3d Cir.2012) (”Marrero I“).
In our view, Marrero II cannot be squared with the Supreme Court‘s clear prohibition on substituting “a facts-based
To be clear, Shepard permits district courts to review transcripts of plea colloquies when applying the modified categorical approach, to ascertain the offense to which the defendant pled guilty. See 544 U.S. at 26. If the operative charging document limits the charge to a statutory alternative that meets the generic offense definition, a factual-basis statement at the plea colloquy and the charge, together, can establish the crime of conviction, because that fact then does become essential. Likewise, there may be circumstances in which a factual-basis statement detail, not extraneous to the conviction, unequivocally establishes that the conviction “‘necessarily’ rested on the fact identifying the [offense] as generic.” Shepard, 544 U.S. at 21 (quoting Taylor, 495 U.S. at 602).10
But courts remain restricted to the modified categorical approach‘s “focus on the elements, rather than the facts, of a crime.” Descamps, 133 S.Ct. at 2285. Thus, in a case like this one—in which there is no narrowing through the indictment, information, or other charging document, and no narrowing of the offense of conviction through the actual conviction documents or pleas—a sentencing court may not rely on an extraneous factual-basis statement detail, standing alone, to supply the narrowing for purposes of the modified categorical approach. At bottom, the Shepard documents in this case at most suggest that Marcia-Acosta committed the crime of intentional aggravated assault. They do not show that Marcia-Acosta was convicted of that crime. On
In sum, the district court misapplied the modified categorical approach in determining that Marcia-Acosta‘s prior conviction was for a crime of violence, and therefore erred in including the 16-level enhancement in its calculation of the Guidelines sentence.
IV.
Although advisory after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines remain “the starting point and the initial benchmark” of any sentencing determination. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “[S]entencing proceedings are to begin by determining the applicable Guidelines range. The range must be calculated correctly.” United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). “A mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing.” United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir.2011) (per curiam). We thus vacate Marcia-Acosta‘s sentence and remand for resentencing consistent with this opinion. Accordingly, we need not address Marcia-Acosta‘s arguments that his sentence was otherwise procedurally erroneous and substantively unreasonable.
VACATED AND REMANDED FOR RESENTENCING.