United States v. Urbano Castillo-Marin

bеneficiary designation Gary M. 2-814 revokes Zadick designation where and divorce oc- Ugrin Higgins, Alexander & Zadick PC date, curred to 72-2-814’s effective Box P.O. policyholder but the occurred death Falls, MT Great 59403-1746 may answer after it. The be determina- Counsel for of Defendant-Cross-claimant- appeal pending tive before us. 15(3). Appellant Johanna M. Anderson: Mont. Proc. App. Rule Roberta Anner-Hughes acknowledge that the Su- We Montana preme ques- Court reformulate Anner-Hughes Law Offices tion, phrasing question of and that our Box 1156 P.O. your is not to restrict Court’s intended Billings, MT See Mont. request. consideration of QUESTION CERTIFIED. 15(6)(a)(iii). App. Rule Proc.

IV. The clerk of this court shall forward a order, seal, copy of this official Court, Supreme along the Montana with copies of all briefs and of excerpts record that have been filed with this court.

The parties notify shall the clerk this America, UNITED STATES days any by within 14 decision Plaintiff-Appellee, Montana Supreme Court to or accept de- cline If certification. the Montana Su- preme certification, accepts Court par- CASTILLO-MARIN, Urbano notify ties shall then the clerk of this court Defendant-Appellant. days within 14 of the issuance of that opinion. Court’s Submission of appeal this No. 10-10549.

will be a separate pend- vacated order Appeals, States Court of ing the Supreme Montana Court’s re- Ninth Circuit. sponse request. to our y. Aug. Submitted 2011.* The is a following list of appear- counsel July Filed ing in this matter:

Counsel for Plaintiff-Appellee Thrivent Financial For Lutherans:

Frederick Matthew Ralph Whitney,

Dorsey & LLP Street, 50 South 6th Suite 1500 MN Minneapolis, Counsel for DefendanNCross-defen- Lucia E. danb-Appellee Andronescu: * panel unanimously 34(a)(2). R.App. concludes this case is See Fed. P. argument. suitable for decision without oral Valladares, Acting L. Federal

Rene Defender; Weksler, Public Brenda Assis- Defender, Vegas, tant Federal Public Las NV, appellant. for the Bogden, States Attor- Daniel G. Ellman, Chief; Appellate ney; Robert Flake, Adam M. Assistant United States NV, Attorney, Vegas, appellee. Las for the Before: RAYMOND C. FISHER and RAWLINSON, JOHNNIE B. Circuit TIMLIN, Judges, and ROBERT J. Judge.** District TIMLIN; by Opinion Judge by Judge Concurrence RAWLINSON.

OPINION

TIMLIN, Judge: District Defendant Urbano Castillo-Marin (“Castillo-Marin”) the sentence appeals a imposed following guilty plea being his deported alien found the United States In particu in violation of 8 U.S.C. 1326. lar, challenges the district Sentencing application court’s of U.S. (U.S.S.G.) 2L1.2(b)(1)(A)(ii), Guidelines imposes which 16-level enhancement commit ‍‌​​‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌‌‌​​‌​​​‌​‌​​​​​​‌‍ previously where a defendant has а crime of violence. He contends ted by the district court committed solely characteriza relying PSR’s For the rea tion of his conviction. below, vacate the sen sons set forth resentencing. tence and remand for ** California, Timlin, sitting by designation. J. The Honorable Robert Judge for the Central District States District

I. BACKGROUND the court sentence Castillo-Marin to 51 months. 5, 2010, February Castillo-Marin,

On government requested a sentence of Mexico, citizen of was arrested officers objec- months. The defense no made Metropolitan Vegas of the Las Police De- tion, in writing either or at sentencing driving while partment intoxicated. itself, hearing to the PSR’s characteriza- Agents Immigration of the and Customs tion conviction as “crime of him, Enforcement subsequently arrested violence” for sentencing purрoses. Rath- 3, 2010, and on March Castillo-Marin was er, Castillo-Marin’s counsel made other with charged willfully being indicted and 3553(a) arguments pursuant to 18 U.S.C. unlawfully country in this in violation of 8 that Castillo-Marin’s sentence should be 1326(a) being previously U.S.C. after ar- reduced below the low end of the Guideline removed, deported, rested and ex- and/or range, including his contention that pled guilty cluded. He to the one count application of the 16-level enhancement indictment a plea agreement. without produced a Guideline sentencing range Investigation A Presentence Report “which overstates the seriousness of Mr. (“PSR”) prepared in anticipation of re-entry Castillo’s unlawful offense and sentencing hearing. The PSR calcu criminal record.” He argued further that lated the base offense lеvel at pursuant 8 had two removals and 2L1.2(a), to U.S.S.G. but recommended felony one which years was a “few old” and a 3-level reduction for acceptance of re requested a sentence below the Guideline sponsibility and a 16-level enhancement range at 37 months. prior deportation for his felony after a The district court stated at sentencing conviction for a according crime violence that he “taking government’s] [the 2L1.2(b)(1)(A). to Section The PSR stated recommendation” and sentenced Castillo- that the enhancement was based on Castil Marin to imprisonment, 46 months a sen- “Attempted lo-Marin’s conviction for tence which factored in the 16-level en- Degree (Felony, 120.10-110), Assault 2nd hancement for a crime of violence. This Supreme York, Queens Court of New timеly appeal followed. County, 98Q991614.”1 Case No. II. STANDARD OF REVIEW It provided also the following narrative: document, “According charging plain Under the error standard of defendant stabbed a male with a knife five review, the appellant must show that the (two chest, times in the two to the shoul- (1) (2) district court made an error that area, side). der and one to the left The (3) obvious, was clear or that affected sub victim remained in critical condition for rights, stantial seriously that af days.” information, five Based on this fairness, fected the integrity public or PSR concluded: “This is Crime of Vio- reputation judicial proceedings. See lence as defined 8 U.S.C. Johnson, 1085, United States v. 626 F.3d 1101(a)(43).” Applying a criminal Cir.2010). histo- 1088 For an error to have ry category of III to the total offense level rights, affected substantial “in most cases 21, the U.S. Probаtion Office arrived it means that the error must have been a Guideline sentencing range of 46 to 57 prejudicial: It must have affected the out imprisonment months and recommended come of the district court proceedings.” parties agree that the PSR's reference an error and actually that Castillo-Marin was attempted degree assault in the second degree. convicted of assault in the first 734, 13, 16, 4, Olano, 725, 1254, n. 125 S.Ct. 507 U.S. U.S. v. United States (1993).2 (2005)). 1770, L.Ed.2d 508 L.Ed.2d 113 S.Ct.

III. DISCUSSION A. convic whether a To determine brief, opening In his Castillo-Marin ar- of violence under as a crime qualifies

tion gued that reversal is warranted because 2L1.2, ap apply courts presen- reliance on the the district court’s Taylor v. set forth United proach (PSR) char- tencing investigation report’s States, 575, 602, 110 S.Ct. 495 U.S. acterization of Castillo-Marin’s of- (1990). ap Under that 109 L.Ed.2d 607 as a “crime of violence” satisfied the fense whether a courts first consider proach, prongs error standard. four categorically a crime of prior offense “is brief, answering In its did full whether by assessing violence that prongs not contest the first two are covered range [the statute] of conduct i.e., that the district court com- satisfied — meaning of that term.” falls within an or mitted was clear obvi- Grajeda, v. and, thus, argument. concedes the ous— (internal (9th Cir.2009) quotation McEnry, v. See United States omitted) (alteration original). If marks (9th Cir.2011) (when govern- of conviction is overbroad— the statute argument ment does not make that “was is, conduct that punishes if it some answering available at the time it filed its of violence and some qualifies as crime argument”); ... has waived that [it] brief categor does nоt—it does not conduct that Marsh, see also Smith of violence. See ically constitute a crime (9th Cir.1999) (“[0]n appeal, argu- 1052 case, apply In that courts the “modi id. by party opening ments not raised a in its categorical approach” to determine fied waived.”). are deemed brief of conviction shows whether the record Even had ar that the defendant “was convicted that the district court not commit gued did defined crime.” generieally elements of the by relying obvious error on the PSR’s Vidal, v. 504 (quoting Id. United States description factual and characterization of Cir.2007) (en banc)). (9th 1072, F.3d 1077 offense, prior we would Castillo-Marin’s categorical approach, the modified Under precedent disagree. Our is clear that a “rely[ only may courts on documents ] may rely district court not on PSR’s finding,’ give ‘certainty generic of [it] description prior factual offense to definition, including statutory charg ‘the determine whether the defendant was con document, plea agreement, written ing violence, victed of a crime of notwithstand any explicit transcript plea colloquy, object ing the defendant’s failure to to the finding by judge the trial to which factual ” See, e.g., v. Corona- PSR. United States assented.’ United States v. the defendant (9th Sanchez, 1201, 1212, Oca, 915, 291 F.3d 1214 Aguilar-Montes de 655 F.3d 937 Cir.2002) (en banc) (“A (9th Cir.2011) (en banc) (citations omitted) presentence report States, is insuffi- reciting 544 the facts of the crime (quoting Shepard v. United Furthermore, applies. plain standard We need not decide whether to exercise our error applying the de "discretion to refrain from whether we review reversаl is warranted here plain error review" and in fault standard of plain or de novo. United States Cf. review de novo. United States v. Pimentel-Flores, 959, stead Gonza v. 967 n. 10 419, (9th lez-Aparicio, 663 F.3d 426 Cir. Cir.2003). (9th 2011). concedes that 920 district

dent evidence to establish defen court relied on the PSR’s factual pled guilty dant to elements of the description prior of Castillo-Marin’s of- of a crime generic definition when the fense to determine that Castillo-Marin had is broader statute of conviction than the violence, been convicted of a crime of it definition,” though generic even the defen erred.3,4 plainly object to the dant “did not PSR’s recita The district court also committed tion.”) Franklin, States v. (citing United plain error to the extent that it based its (9th 1165, Cir.2000); United sentence probation on the officer’s charac Pоtter, F.2d States v. 1237-38 terization prior of Castillo-Marin’s offense (9th Cir.1990)); Gonzalez-Aparicio, 663 as a crime of violence. Such reliance (observing F.3d at that “a sentenc plain the PSR to amounts error for two ing may not turn PSR for a First, independent reasons. we have rec description underlying narrative ognized that a court may district not base conviction,” prior facts of the notwith a sentence enhancement on the PSR’s standing objec that the defense made no prior characterization of a offense aas PSR); tions to the see also United States qualifying In offense. United v. Chavaria-Angel, Matthews, (9th Cir.2002) (en 278 F.3d 880 (9th Cir.2003) (observing that “in this cir banc), a adopted district court the PSR’s cuit, rely district courts exclusive recommendation defendant be ly pre-sentence report on ... as evi sentencеd as an Armed conviction”). Career Criminal Indeed, dence of a based on his burglary conviction. multiple have held on occasions that a novo, See 278 Reviewing F.3d at 883. district de court commits error when it we held that “the district court solely on the facts erred “relie[s] recited in the Rendon-Duarte, sentencing PSR.” [the defendant] United States v. as an Armed Cir.2007); Career F.3d Criminal it because failed ana Pimentel-Flores, lyze States v. statutes which [the defen (9th Cir.2003). Thus, to the extent the was previously dant] convicted to deter- 3. This is not a in which by relying case the district court erred on "the facts as re might court’s reliance PSR on the be excused presentence counted in investigation re because the PSR's narrative was based on port” despite the fact the defendant acceptable аnother source. Gonzalez- Cf. object "should did have—but not— Aparicio, (holding 663 433 F.3d at that it was analysis presentence report”); in the United plain not rely error for the district court to on (4th Boykin, States v. 472 Cir. the PSR's narrative that was based on court 2012) (holding plain "it that was error for the ‍‌​​‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌‌‌​​‌​​​‌​‌​​​​​​‌‍acceptable records that Shepard). are under district court to use PSR’s recitation Here, description, by the PSR’s its own terms having facts ... without first satisfied only charging was based on the document for ' itself that the bore PSR "the earmarks Castillo-Marin’s conviction. It is well estab- Shepard- derivation approved from "[cjharging papers lished that alone are never ' ”); McCann, sources.” United States v. sufficient” to determine the character of a Cir.2010) (5th ("When F.3d a court prior defendant’s conviction. Corona-San- alone, ... relies on the PSR it makes an error chez, 291 F.3d at 1211. obvious.”); that is clear and Thomas, Many 4. of our Cir.2011) (hold sister circuits have also found that the district commits court reversible er ing that procedural it was error for the dis ror a when it relies on PSR’s descrip factual ruling trict court ”base[] its that [the de defense, prior tion of a notwithstanding the escape fendant's] conviction was a crime of See, object defendant's failure to to the PSR. undisputed violence on the allegations factual Davila-Felix, e.g., United States v. PSR”). in the (1st Cir.2011) (holding that the district they can mine whether satisfied elements We understand the frustration of judges district who sentence defendant Taylor.” ‘generic burglary’ of a Id. objection on a record to which no was (“The 884; also id. at 885 district at see made to have to later revisit the analyze not ... the statutes of court did matter because government failed to Tay to determine whether the conviction job. do its Relying solely on the factual met, Taylor standard was fact as lor PSR, however, description in the was (citing Taylor, directs the court to do.” plain error. 2143)). 602, 110 U.S. at S.Ct. 968; Potter, Id. at see also 895 F.2d at Pimentel-Flores, In applied Mat- 1238 (insisting sentencing court There, plain thews under error review. examine the statutes under which the de- the PSR stated the defendant “had a purposes fendant was convicted for of de- for ‘assault in violation of a prior conviction termining what counts as a qualifying felo- order, felony, County Franklin ny). Court, Superior Washington, Pasco Case Here, as in Matthews and Pimentel- No. 98-1-50371-1’” and concluded that Flores, the district court based its sentenc- qualified thе defendant’s conviction as a ing the PSR’s characterization of Cas- Rely- crime of violence. 339 F.3d at 961. tillo-Marin’s prior offense as a crime of ing solely on the PSR’s characterization of so, By doing violence. plainly it erred.5 offense, the district court enhanced the second, independent reason that the Ap- defendant’s sentence. See id. district court’s reliance on the PSR’s char standard, plying we vacated acterization was plain error is that and the sentence remanded. We observed applied PSR itself the wrong definition of first that the had not satisfied “crime of violence.” The recom PSR Taylor its burden under because it had not mended that the district court enhance provided the statute of the defendant’s Castillo-Marin’s sentence under U.S.S.G. Second, 2L1.2(b)(1)(A) prior сonviction. Id. at 968. we § on the basis that Castillo- conviction, explained: Marin’s “a Crime of 11379(a)” distinguishes Safety 5. One fact that this case from Cal. Health & Code that, here, Matthews and Pimentel-Flores provided a factual narrative of the defendant's the PSR contains a reference to the statute of offense. Id. at 273. The defendant did Castillo-Marin’s conviction. The PSR object to the PSR's characterization of his as the defendant’s conviction: "At- listed offense, applied and the district court six- Degree (Felony, tempted 2nd Assault 120.10- teen-point enhancement on that See id. basis. 110).” assuming Even the district court un- at 271. The Fifth Circuit vacated the sen- "Felony, 120.10-110” to be a refer- derstood tence, holding that the district court commit- 120.10, § Law ence to New York Penal it is 274-75; plain ted error. See id. at see alsо undisputed that the district court never ana- McCann, 486, United 502 lyzed statutory provision Taylor the under (5th Cir.2010) (When is uncontested that "[i]t and, instead, simply took the PSR's character- solely the district court relied PSR ... [a] at value. ization face erred.”); plainly the district court United Garza-Lopez, In United States v. Ochoa-Cruz, (5th 442 States v. Cir.2005), (5th the Fifth Circuit held that Cir.2006) curiam) (per (holding that the dis- plain virtually there was in identical trict court commits clear and obvious error There, the PSR recom- circumstances. when it relies on the PSR’s characterization mended an enhancement on the the basis that of the defendant’s offense as a crime of prior "drug defendant had committed a traf- violence, independent without an determina- ficking Id. at offense.” "The PSR stat- tion of whether the conviction was in fact a ed that the bаsis for en- [the defendant’s] violence). crime hancement was 2001 conviction under of [his] 2L1.2(b)(l)(C) § See under 8 U.S.C. & cmt. Violence as defined 1101(a)(43).” 1101(a)(43), a (imposing § sec- an eight-level Section enhancement for code, Nationality and aggravated felony tion of the Aliens an as defined in 8 “aggravated 1101(a)(43)). felony” for § defines the term U.S.C. determining deporta- what is a purposes of A district court commits an obvious offense, penalties fix criminal ble and error when it an guideline “uses incorrect “aggra- of an reentry for after commission to impose the 16 level enhancement” felony.”

vated 2L1.2(b)(1)(A). § States v. United Beni 1101(a)(43) lists “crime of Section tez-Perez, (9th Cir. qualifies violence” as one offense as 2004) (holding that “there was error and felony. aggravated an See the error was when clear” thе district (“a (as 1101(a)(43)(F) § crime of violence court incorrectly imposed a 16-level en of defined in section 16 Title but not 2L1.2(b)(1)(A) § hancement under on the offense) political including purely basis that the has defendant committed an imprisonment which the term of [is] aggravated felony under 8 U.S.C. year”). repeatedly have least one We rec 1101(a)(43)).6 § 1101(a)(43)’s however, ognized, “that of definition of ‘crime violence’ is material B. ly different from the definition of ‘crime of 2L1.2(b)(l)(A)(ii).” §in violence’ Having found the district court States v. Rodriguez-Guzman, 506 F.3d error, committed clear and obvious we Cir.2007); 741-42 see also Pi must consider whether error affected (“Al mentel-Flores, F.3d at rights Castillo-Marin’s substantial though ‘crime of phrase ap violence’ “seriously fairness, integrity affected 1101(a)(43)(F) pears in both [§ ] and public or reputation judicial рroceed 2L1.2], ... guideline [U.S.S.G. takes Johnson, ings.” F.3d at 1088. We care to include own definition. Signifi its conclude that both factors are met. cantly, guideline definition is different statutory from the argued definition of that in his open phrase. that, Each definition works well ing within brief the district had court prop Indeed, respective regime.”). erly its analyzed Castil statute his con lo-Marin been previously had convicted of viction it Taylor, would have found 1101(a)(43)(F), crime of and, violence under that the thus, statute was overbroad states, subject as the he would necessarily PSR be to he was not convicted of a crime eight-level an enhancement under violence. The government, again, did 2L1.2(b)(1)(C), the 16-point and, thus, not argument en contest this ap hancement district imposed. parently event, In any concedes it. sue, however, concurring colleague 6. Our would hold that applied is whether PSR because, there was error here no correct definition of crime of violence—found calculating Castillo-Marin's total offense lev- 2L1.2, l(B)(iii)—to Application §in Note de- el, stated, "Specific the PSR Offense Charac- termine that the enhancement was warranted. deported teristic: The defendant was after a explicitly The PSR states its conclusion that felony a crime conviction for of violence. prior Castillo-Marin's offense “is a Crime of pursuant added Sixteen-levels are to U.S.S.G. Violence as under defined 8 U.S.C. 2L1.2(b)(1)(A).” § Concurring Op. at 928. Thus, 1101(a)(43).” § we have no trouble sure, disagree. We question To be there is no applied concluding PSR wrong the that the PSR sixteen-point recommended a definition. 2L1.2(b)(1)(A). § enhancement under The is- evincing a de- prior that his 3. Under circumstances with Castillo-Marin agree life, indifference to human he praved of categorically a crime is conviction engages in which cre- recklessly conduct violence. grave a risk of death to another ates ap- Taylor’s categorical to Pursuant thereby and causes serious person, under- cannot examine the proach, courts injury person; or physical another offense, prior the but facts of lying In the course of in furtherance 4. and fact and only to the of conviction “look attempted commission or commis- of the offense.” statutory definition felony flight or of immediate sion of 2143; 110 S.Ct. Taylor, 495 U.S. he, therefrom, participant or another Oca, F.3d at 920. de Aguila-Montes any, physical sеrious there be causes “if if the qualifies and The conviction injury person to a other than one of the by[the conduct stat- range full of covered participants. meaning of that term.” falls within ute] (1996). § Penal Law 120.10 N.Y. Female, 566 v. United States Juvenile qualifies of An offense as a “crime vio (9th Cir.2009). “[E]ven F.3d 2L1.2(b)(1)(A)(ii) § under U.S.S.G. lence” covers conduct the statute egregious least “(1) use, ‘has as if it either an element the Lopez- v. qualify.” United States must use, physi or use of attempted threatened Cir.2006) Solis, against person cal force of another’ (citation omitted). prong” under the definition’s ... ‘element’ The PSR states one or “constitutes of the crimes listed Law under New York Penal convicted prong in the ‘enumerated offense’ of § At the time of Castillo-Marin’s 120.10. Grajeda, at 1189-90 definition.” conviction, provided: Section 120.10 l(B)(iii) 2L1.2, (quoting U.S.S.G. cmt. n. (2006)).7 address in turn whether a We of in the first guilty A is assault person categorically under conviction 120.10 when: degree as a crime of under the qualifies violence physical intent to cause serious 1. With prong or the enumerated offense element person, another he causes such injury to prong of the Section 2L1.2 definition. person per- such or to a third injury to or a deadly weapon means of a son prong Element 1. instrument; dangerous or “We have clear that made per- to disfigure prong 2. With intent another under of required force the element or to seriously permanently, 2L1.2 crime of definition son violence ” destroy, amputate, perma- actually or disable be violent in nature.’ Unit ‘must body, nently organ Espinoza-Morales, a member or of his ed (9th Cir.2010). or In addition to injury person cаuses such to such he force, “a requiring degree or a certain person; to a third minor, statutory rape, provides sexual abuse of The current definition in full: arson, extortion, robbery, extortionate ex- any the fol- "Crime of violence” means credit, dwelling, burglary tension of federal, state, lowing or offenses under federal, state, any other offense Murder, or kidnap- manslaughter, law: local element the assault, or local law has as an ping, aggravated sex of- forcible use, use, attempted use of or threatened (including where consent fenses against physical person of an- given legally force val- is not or is not conduct id, as where to the conduct other. such consent 2L1.2, coerced), l(B)(iii). cmt. involuntary, incompetent, n. or 924

predicate require offense must injury [also] inten- ical occurs the course of in “[i]n use, use, attempted or tional threatened furtherance of the commission or attempt- use of force to constitute a crime of vio- ed felony commission of a or of immediate 2L1.2; § lence under neither recklessness 120.10(4). flight § therefrom.” Id. As the negligence enough.” nor United States observed, Second Circuit has subsection Melchor-Meceno, 1180, v. (4) 620 F.3d “replaces injure the intent to require- (9th Cir.2010). traditionally ment associated with the crime of assault with the intent to commit §

New York Penal Law 120.10 is over- underlying felony.” Langston v. broad because it not prohibit only does Smith, (2d 310, Cir.2011).8 injure. conduct that involves an intent to Thus, a defendant can also be convicted of In particular, a defendant can be convicted (4) degree first assault under subseсtion (3) (4) § under subsections or of 120.10 having without an injure. intent to As a having without an injure. intent to A de- result, § a conviction under 120.10 does can fendant be convicted of degree first qualify aas crime of violence under the (3) assault under subsection if serious prong element of 2L1.2.9 physical injury occurs “recklessly while he engages in conduct grave which creates a 2. Prong Enumerated Offense

risk of death person,” to another whether or not he an injure. has intent to N.Y. An may ‍‌​​‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌‌‌​​‌​​​‌​‌​​​​​​‌‍offense qualify also aas 120.10(3). Penal Law crime of if violence it falls within the list

Furthermore, a defendant can be con- offenses enumerated 2L1.2. (4) victed under subsection phys- serious Grajeda, See 581 F.3d at (citing determining 2010) In categorical reach (observing that a defendant could crime, state only this court "considers not plead guilty аttempted first-degree to assault statute, language of the state but also the 120.10(3) (4) "[a]lthough or because interpretation language judicial opin- recognizes New attempt York law liability Gonzales, Ortega-Mendez ions.” v. only for crimes that involve a mens rea of 1010, (9th Cir.2006). specific opposed intent —as to crimes of reck lessness and crimes with no mens rea ele 9. That Castillo-Marin was convicted of at felony ment such as assault' —New York tempted first-degree assault change does not permit courts by plea hypo convictions to sure, the outcome. To be New York law legally impossible thetical or offenses such as generally requires that the defendant act with attempted recklessness.”). aspect This specific completed intent to commit the Nеw distinguishes present York law case attempt. crime to be People convicted of See Gomez-Hernandez, from United States v. 602, Campbell, 72 N.Y.2d 535 N.Y.S.2d 1171, (9th Cir.2012) 1175-78 & n. 4 580, (1988) ("Because 532 N.E.2d (holding that the defendant's conviction for very essence of a attempt criminal is the de attempted aggravated qualified assault as a proscribed fendant's intention to cause the because, crime of violence under Arizona result, it follows that there can attempt be no law, possible it is not to be convicted of at to commit a crime causing which makes the intent). tempt specific without of a certain result though criminal even PSR, which unintended”). is the wholly York, however, document in the New discussing record permits attempted plead Castillo-Marin's guilty defendants to legally to conviction, crimes, impossible specify assault does not including attempted whether reck first-degree by Castillo-Marin jury by less was convicted People assault. See or v. Guish ard, and, thus, plea pled 15 A.D.3d he guilty 789 N.Y.S.2d have to fact, (affirming plea merely attempt reckless conviction to conduct. In the certifi- ed degree assault in the although disposition, first cate of which the "legal crime was a impossibility”); urges judicially see us appeal, also notice on states Holder, Dale v. Cir. plea. was convicted § Application 2L1.2 Note first instance —to conclude that Castillo- l(B)(iii)). whether the de- Marin was in fact To determine convicted of a crime of within one of violence. fendant’s conviction falls We decline to do so. offenses, compare enumerated we the stat- “First, rarely judicial we take no utory definition of the crime of conviction presented tice of facts for the first time on generic

with the definition of the enumer- appeal.” Reina-Rodriguez v. United ated offense. States v. Velas- See United States, (9th Cir.2011). quez-Reyes, 427 F.3d Cir. “Second, judicial we take notice of a fact 2005). Here, the closest enumerated of- subject if it is ‘not to reasonable assault,” and, thus, “aggravated fense is ” 201(b)). dispute.’ Id. (citing Fed.R.Evid. we consider whether Castillo-Marin’s con- Here, certificate of disposition generic viction fits within the definition of states: “DEFENDANT WAS CONVICT- that crime.10 ED OF ... PL 110-120.10 01 CF.” Ac- Esparza-Herrem, In United States v. cording to government, the reference (9th Cir.2009), held, 557 F.3d 1019 to “01” establishes that Castillo-Marin was analysis based on an of state laws (1) convicted under subsection of New Code, that generic Model Penal dеfini 120.10, § York Penal Law which par- both “aggravated requires tion of assault” agree ties qualify would as a crime of greater ordinary mens rea than reckless violence. Castillo-Marin concedes that the above, ness. Id. at 1023-25. As described “01” notation on the certificate is a refer- defendant be convicted of first- (1) § ence to subsection 120.10. He ar- 120.10(4) § degree assault under for ordi however, gues, accuracy nary recklessness. Castillo-Marin’s con i.e., whether it reflects that he certificate — viction, thus, “aggra does not constitute actually convicted under subsection vated assault.” subject to dispute. reasonable We —is prong Because neither the element nor agree. satisfied, prong enumerated offense Cas- recognized The Second Circuit the unre- § tillo-Marin’s conviction under 120.10 is liability of disposition, certificates of categorically a crime of violence.11 respect notations, least with to subsection Green, in United States v. Michael C. (2d Cir.2007). There, government, apparently recognizing government relied on a New York State § 120.10 is not categorically a crime disposition certificate of to argue that the violence, urges judicial us to take notice defendant had previously been convicted of of a New York criminal indictment and predicate offense. The certificate stated: certificate of disposition related to Castil- “DEFENDANT WAS CONVICTED OF conviction, lo-Marin’s apply and to ... PL 110-220.16 01 gov- CF.” Id. The categorical the modified approach argued ernment that the “01” notation es- —in "[p]rior 10. The Guidelines make clear that 11. We need not consider whether Castillo- convictions of offenses counted under qualify [Sec- Marin's conviction would as a crime 2L1.2](b)(l) (a)(43)(F), tion § include offenses or ... at- of violence under 8 U.S.C. tempting to commit such offenses.” U.S.S.G. which defines "crime of violence” refer- Thus, above, first-degree 2L1.2 cmt. n. 5. assault ence to 18 U.S.C. 16. As we discuss assault,” "aggravated 120.10 is an that definition of crime of violence differs attempted first-degree then Castillo-Marin’s from U.S.S.G. 2L1.2’s definition. See Rod- riguez-Guzman, conviction crime assault is a of violence. 506 F.3d at 741-42. not, rule, the defendant was

tablished that convicted did as a provide a subsection. (1) Therefore, of New York filed, under subsection Penal when indictments were Law and the district court im- 220.16 entry data clerks were unable to enter posed a sentence enhancement on that ba- subsections into computer files. If a at sis. See id. pled guilty defendant or was convicted jury, the subsection was not en- that, it appeal, On was uncontested in computer tered records and as a in the defendant fact had been convicted result subsections were not indicated in 220.16(1), the enhancement was a defendant’s NYSID records. Ms. appropriate. See id. The defendant ar- Prinz also testified that certificates however, gued, the district court conviction presently are computer gen- should not have taken the certificate of erated. As the requires current law disposition at face value because it was that a subsection assigned be in the unreliable. See id. at 631. The Second crimes, pertinent records of the comput- “[wjhile agreed. exрlained Circuit It ers have programmed been to indicate disposition a certificate of ‘pre- constitutes subsection one or “01” as the default sumptive evidence of the facts in stated regard subsection without to what certificate,’ such presumption is rebut- proper subsection table; should be. the certificate is not conclusive.” (emphasis Id. at 633 original) (quoting Thus, case, in this the witness testified 60.60(1)). N.Y.Crim. Proc. Law The that no subsection was ever entered into accuracy observed that the of certifi- computer at the pled time defendant cates of disposition has been called into guilty to Criminal Possession of a Weap- question by New York state courts. See inon Degree Third on October id. at (citing People v. Jamal 1989. When defendant requested a cer- Green, 311/98, No. 2006 WL 3457236 June, 2005, tificate of disposition in 2006)). (N.Y.Sup.Ct. Nov. disposition certificate of automatically Green, In Jamal the central issue was assigned one, by default, subsection whether the disposition certificate of accu- any person without checking ever to de- rately stated the subsection under which termine if this was the correct subsec- the defendant was convicted. The defen- tion. argued dant that he was convicted under Green, (quoting Id. Jamal 2006 WL (1)

subsection of New York Penal Law *4). 3457236, at § 265.02 based on the notation in his cer- disposition. tificate of Id. at 634. At the background, With this the Second Cir- sentencing defendant’s hearing, “the state cuit, Green, in Michael concluded that the called as a person witness the responsible (1) certificate’s “reference to subsection entry data in the Clеrk’s Office of the ... 220.16 properly could not be taken Supreme Queens Court for County.” Id. at face value.” Id. 635. The court Supreme Court of New York ex- vacated the defendant’s sentence and re- plained: give manded to an oppor-

Court Clerk Prinz explana- offered an tunity prove that the certificate’s refer- tion as to why the reason defendant ence to subsection was accurate. See id.; obtained a Disposition Certificate of see also United Neri-Her- specifying nandes, (5th Cir.2007) subsection one. Ms. Prinz 1990’s, that prior testified voted (adopting the Second Circuit’s reasoning case, indictments such as the one in this Michael Green to conclude that a eertifi- disposition cate of “is admissible” but “is to 46 months. enhancement, Absent the conclusive”). the Guidelines would have recommended a range of 0-6 imposition months. The Green, Green, light In of Michael Jamal this substantially greater clearly sentence Neri-Hemandes, whether the New and affected Castillo-Marin’s rights substantial disposition’s certificate of notation York judicial and the fairness of proceed- the accurately that ‍‌​​‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌‌‌​​‌​​​‌​‌​​​​​​‌‍“01” reflects Castillo-Ma ings.13 rin was convicted under subsection is “subject dispute.” to reasonable Reina D. Rodriguez, at (citing 655 F.3d Fed. 201(b)). Therefore,

R.Evid. reasons, we decline to For foregoing the we hold that judicial take notice that Castillo-Marin the plainly district court erred when it was convicted N.Y. Penal Law remand, sentenced Castillo-Marin. On 120.10(1). government the will have the opportunity judicially to submit noticeable documents government request has also to demonstrate which subsection of judicial ed that we take notice of the New § 120.10 Castillo-Marin was convicted un- York charging indictment der. If government the rely wishes to on However, first-degree with assault. the New York disposition, certificate of it “[c]harging papers alone are never suffi required should be to introduce evidence predicate cient” to establish a offense un establishing accuracy. its categorical approach. der the modified VACATED and REMANDED. Coronctr-Sanchez, United States v. (9th Cir.2002). 1201, 1211 F.3d Without RAWLINSON, Circuit Judge, presenting additional documents author concurring the result: 13, Shepard, ized under 544 U.S. 125 S.Ct. satisfy cannot The defense object any its did not time “clearly

burden to establish unequivo and statement in the Presentence Re (PSR) cally” that prior port Castillo-Marin’s convic that Urbano Castillo-Marin’s qualifies tion a as crime of violence. Unit conviction in New York State Court Navidad-Marcos, ed States v. was for a 367 F.3d crime of for sentencing violence (9th Cir.2004) 903, 908 (quoting purposes. Consequently, Corona- we review for Sanchez, 1203).12 plain 291 F.3d at We thus error. See United States v. Portillo- Mendoza, reject (9th government’s argument Cir. Castillo-Marin’s upheld by sentence can be 2001).

applying categorical the modified approach Plain error occurs when a judge com- appeal. mits error that is so compe- obvious

Based on the 16-level judge enhancement for tent should be able to avoid it with- violence, committing prior crime of any party bringing out the matter to the Guidelines a range judge’s recommended of 46-57 attention. See United States v. (9th months and Nguyen, Cir.2009). Castillo-Marin was sentenced 12. The other document in the appeal record that 13. Castillo-Marin also contends on imposed procedurally relates to district court Castillo-Marin’s conviction is above, substantively and however, unreasonable sentence in explain the PSR. we As violation of 18 U.S.C. 3553. Because we properly rely district court could not on the plainly hold that the court erred and remand PSR here. resentencing, we need not address this additional claim. of plain suit, “Reversal on basis error is an Castillo-Marin had followed the dis ...” exceptional remedy United States v. trict court would not have committed Lo, Cir.2006). 1212, 1228 “If in relying on the PSR. See id.1 an not clear or error is obvious from the I expressly unequivocally decline to record, object failure to defendant’s join majority’s alternative basis for Brigham, fatal....” United States reversing the district court—that the PSR (9th Cir.2006). cited to wrong definition of “crime of indisputably

The facts of this case re- Majority Opinion, violence.” p. 922. Al flect that the PSR documented the com- though the summarizing line Castillo-Ma a prior by mission of crime of violence rin’s criminal history referred to 8 U.S.C. 1101(a)(43) Castillo-Marin. The facts of this case also § in describing the New York indisputably reflect that Castillo-Marin in conviction, portion the of the PSR address way objected no to the characterization of ing the sixteen-level enhancement under prior his conviction as a crime of violence. the heading “Specific Offense Characteris tic” correctly cited I concur the result of opinion 2L1.2(b)(1)(A). objection Absent from because, because, precedent our defendant, and under a plain error expressly holds it is error for a review, standard of simply we cannot de district court rely presentence to on a termine the writer of the PSR relied (PSR) report when that report simply re on the definition of crime of violence fers to the charging document. See Unit 1101(a)(43) U.S.C. rather than the defi Corona-Sanchez, ed States v. nition of crime of violence in U.S.S.G. (9th Cir.2002) (en banc). I 2L1.2(b)(1)(A). expressly join decline majority’s to application precedent broader of our to Accordingly, I concur in the remand to hold that “a district rely court, go district but no further. a PSR’s factual description of a of prior

fense to determine whether the defendant violence, convicted of a crime of not withstanding the defendant’s failure to ob ject Majority Opinion, PSR.” p. Indеed, one of by the cases cited

majority, United States v. Gonzalez-Apar

icio, Cir.2011), ap proved reliance on the content of a PSR where the PSR quoted from court records.

Consequently, if the PSR prepared for

1. The majority support cases cited Pimentel-Flores, to In United States v. (9th Cir.2003), its conclusion that the district court failed remanded where, case, resentencing unlike this adequately prior discuss the offense are readi- PSR did not “list the statute of conviction.” ly distinguishable. In United States v. Mat- Potter, Finally, in United States v. thews, (9th Cir.2002), 278 F.3d 880 the defen- (9th Cir.1990), we affirmed under specifically objected dant to use of his plain error review the district court’s reliance convictions. See id. at 885. In that circum- presentence report on the describing ‍‌​​‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌‌‌‌​​‌​‌​‌‌‌​​‌​​​‌​‌​​​​​​‌‍stance, we held that it was error for the Force,” “Rape by conviction as though even district analyze court to fail to the statutes of there was no citation to the statute of convic- conviction. tion.

Case Details

Case Name: United States v. Urbano Castillo-Marin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 3, 2012

Citation: 684 F.3d 914

Docket Number: 10-10549

Court Abbreviation: 9th Cir.