United States v. Guadalupe Torres-Jaime

821 F.3d 577, 2016 U.S. App. LEXIS 7271, 2016 WL 1612762
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 21, 2016
Docket15-40208
StatusPublished
Cited by25 cases

This text of 821 F.3d 577 (United States v. Guadalupe Torres-Jaime) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Guadalupe Torres-Jaime, 821 F.3d 577, 2016 U.S. App. LEXIS 7271, 2016 WL 1612762 (5th Cir. 2016).

Opinions

JAMES E. GRAVES, JR., Circuit Judge: '

Guadalupe Torres-Jaime (“Torres-Jaime”) challenges the district court’s sixteen-leVel “crime of violence” sentencing enhancement pursuant tó U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on his prior Georgia aggravated assault conviction. Torres-Jaime urges us to find — in -direct contrast to Fifth Circuit decisions holding otherwise — that his conviction under Georgia Code § 16-5-21(a)(2)1 does not constitute a § 2L1.2 enumerated crime of violence. We AFFIRM the judgment of the district court.

I.

In October 2014, Guadalupe Torres-Jaime pleaded guilty, without the benefit [579]*579of a written plea agreement, to a single count of illegal re-entry after deportation. The Presentence Investigation Report determined Torres-Jaime’s total offense level to be twenty-one, which included a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) because.Torres-Jaime’s 2014 Georgia felony conviction for aggravated assault qualified as a “crime of violence’-’ within § 2L1.2. His total offense level of -twenty-one, when combined with his criminal history category of III, yielded a recommended guidelines range of fórty-six to fifty-seven months’ imprisonment.

Torres-Jaime objected to the sixteen-level enhancement, arguing that his prior Georgia aggravated assault offense was not a crime of violence under the - Guidelines. The district court overruled Torres-Jaime’s objection, downwardly departed, and sentenced him to- thirty-two months’ -imprisonment. ■ Torres-Jaime timely appealed. ■

II.

We consider this single issue: whether Torres-Jaime’s aggravated assault conviction under Georgia Code §16-5-21(a)(2) constitutes.,an enumerated crime of violence” pursuant- to U-.S.S.G. § 2L1.2(b)(l)(A)(ii). We review the district court’s interpretation or application of the Guidelines de novo, and its factual findings for clear 'error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008).

Section 21)1.2 of-the Sentencing Guidelines provides that the offense level for unlawfully entering or remaining in the United States shall be increased by sixteen levels if the defendant has a prior conviction for! a crime of ' violence. See § 2L1.2(b)(l)(A)(ii). The commentary to § 2L1.2 defines “crime of violence” as (1) any specific enumerated offense, including “aggravated assault” or (2) -“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.” § 2L1.2, comment. (n. l(B)(iii)).

We use different tests “when analyzing whether a particular offense amounts to a [crime of violence], and the test used depends on whether the offense is an enumerated one or has physical force as an element.” United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir.2008). Because the state crime at issue is the enumerated offense of “aggravated assault,” we apply a “common sense” approach that looks to the “generic, contemporary' meaning” of an offense listed in § 2L1.2 to assess whether the offense of conviction amounts to an enumerated offense. United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir.2012). To determine this “plain, ordinary meaning,” we look to various sources including the Model Penal Code,'Professor LaFave’s- Substantive Criminal Law treatise, modern state statutes, and legal dictionaries. United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir.2007); see Esparza-Perez, 681 F.3d at 229. “When comparing the state conviction with the generic, contemporary meaning of the crime, we examine the elements of the statute of conviction rather than the specifics of the defendant’s conduct. We look only to the particular subdivision of the statute under which the defendant was convicted.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir.2006) (citation omitted).

■ If the defendant was convicted under a statute that is “narrower than' the generic crime” or that mirrors the generic definition with only “minor variations,” the ■enhancement may stand. United States v. [580]*580Herrera, 647 F.3d 172, 176 (5th Cir.2011). But if the statute of conviction “encompasses prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the conviction is not a crime of violence as a matter of law.” Esparza-Perez, 681 F.3d at 230 (internal quotation marks omitted).

Moreover, under the common sense approach, “if the statute of conviction contains a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction.” Moreno-Florean, 542 F.3d at 449; see Mungia-Portillo, 484 F.3d at 815. Qualifying records “are ‘generally limited to .., the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.’ ” United States v. Herrera-Alvarez, 753 F.3d 132, 138 (5th Cir.2014) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). If such Shepardrcompli&xit documents cannot narrow the conviction, we determine whether the “least culpable act constituting a violation of that statute” necessarily entails the use of force, or constitutes the enumerated offense. United States v. Gonzalez-Ramirez, 477 F.3d 310, 315-16 (5th Cir.2007).

The State’s indictment charged Torres-Jaime with violating Georgia Code § 16-5-21. Under Georgia law, a person commits an aggravated assault' when he assaults:

(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely, to or actually does result in serious bodily injury; or
(3)A person or persons without legal justification by discharging a firearm from within a motor vehicle .toward- a person or persons. -

Ga.Code § 16-5-21(a) (2013). In order to commit an aggravated assault under Georgia law, a person must also commit the offense of simple assault. Guyse v. State, 286 Ga. 574, 690 S.E.2d 406, 409 (2010). A person commits- a simple assault when he either “(1) [attempts to commit a violent injury to the person of another; or (2) [cjommits an act which places another in reasonable apprehension of immediately receiving a violent injury,” Ga.Code § 16-5-20(a) (2015).

. .Here, the indictment charges a violation of § 16-5-21, but does not specify the particular simple assault subsection, § 16-5-20(a)(l) or .§ 16-5-20(a)(2), under which Torres-Jaime was convicted.

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821 F.3d 577, 2016 U.S. App. LEXIS 7271, 2016 WL 1612762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guadalupe-torres-jaime-ca5-2016.