United States v. Sanchez

667 F.3d 555, 2012 WL 45414, 2012 U.S. App. LEXIS 550
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 10, 2012
Docket10-20249
StatusPublished
Cited by45 cases

This text of 667 F.3d 555 (United States v. Sanchez) 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. Sanchez, 667 F.3d 555, 2012 WL 45414, 2012 U.S. App. LEXIS 550 (5th Cir. 2012).

Opinion

OWEN, Circuit Judge:

Joel David Sanchez challenges the forty-eight-month sentence that he received after pleading guilty to the crime of illegal reentry of a previously deported alien following a conviction for an aggravated felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(2). He contends on appeal that the district court improperly calculated his Guidelines range by erroneously applying a sixteen-level crime of violence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A). He also asserts that his sentence is procedurally unreasonable because the district court failed to explain its sentencing decision and is substantively unreasonable because it is greater than necessary in light of the 18 U.S.C. § 3553(a) factors. We affirm.

I

Sanchez pleaded guilty to the crime of illegal reentry of a previously deported alien following a conviction for an aggravated felony offense, in violation of 8 U.S.C. § 1326(a) and (b)(2). The Probation Office prepared a Presentence Investigation Report (PSR) that determined that, based on a total offense level of 21 and a criminal history category of II, Sanchez’s advisory Guidelines range of imprisonment was forty-one to fifty-one months. The PSR’s calculation of Sanchez’s offense level included application of the sixteen-level enhancement in U.S.S.G. § 2L1.2(b)(l)(A), which applies to a defendant convicted of illegally reentering the United States after removal who was previously deported or unlawfully remained in the United States after “a conviction for a felony that is ... (ii) a crime of violence.” 1 The PSR based its application of this enhancement on Sanchez’s 1995 Texas state conviction for attempted sexual assault of a child.

Sanchez filed written objections to the PSR’s application of the § 2L1.2(b)(l)(A) crime of violence enhancement. Among his objections, Sanchez contended that his 1995 conviction could not support the enhancement because Texas’s statute defining criminal attempt criminalizes conduct outside the scope of generic attempt. Sanchez also argued that his Texas conviction could not support the crime of violence enhancement because under Texas law, the age of consent for sexual activity is seventeen, whereas the generic age of consent is sixteen. Sanchez also filed a *559 sentencing memorandum to which he attached exhibits that he requested the district court consider as evidence of mitigating factors in imposing his sentence. The exhibits included letters from employers attesting to Sanchez’s work ethic and character, letters from Sanchez’s wife and mother explaining that Sanchez only returned to the United States to help raise his sons and assist his ailing mother, and certificates from various Bible study courses that Sanchez had attended.

During the sentencing hearing, the district court overruled Sanchez’s objections to the PSR and adopted the findings and recommendations of the PSR as its own. Sanchez then requested a below-Guidelines sentence of twenty-four to thirty months. He based this request on a number of factors that he believed justified a reduced sentence. He pointed to the nature and circumstances surrounding his return to the United States, the fact that his Texas conviction for the attempted sexual assault of a child had occurred fifteen years earlier, the fact that prior employers had submitted letters attesting to his dependability and work ethic, and his renewed religious faith and commitment.

The Government requested a sentence in the middle of the advisory Guidelines range calculated in the PSR. The Government pointed to the nature of Sanchez’s attempted sexual assault of a child conviction and the fact that Sanchez had previously been deported and had then returned to the United States. The district court ultimately sentenced Sanchez to a term of forty-eight months of imprisonment. Sanchez now appeals. We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II

Sanchez challenges his sentence on three grounds. First, he argues that the district court miscalculated the applicable Guidelines range by erroneously applying the § 2L1.2(b)(1)(A) crime of violence enhancement. Second, he claims that the district court procedurally erred when it failed to explain its sentencing decision adequately. Third, he challenges the substantive reasonableness of his sentence. We address these issues in turn.

The Guidelines provide in § 2L1.2(b)(l)(A) that a defendant convicted of illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326, is subject to a sixteen-level enhancement of his base offense level if he was previously deported or unlawfully remained in the United States after “a conviction for a felony that is ... (ii) a crime of violence.” 2 The Guidelines also provide that an attempt to commit an offense that, if completed, would be a crime of violence also qualifies as a crime of violence. 3

Sanchez was convicted in Texas in 1995 of attempted sexual assault of a child, in violation of Texas Penal Code sections 22.011(a)(2) and (c)(1), 4 and 15.01(a). The *560 Texas indictment, to which he pled guilty, alleged that Sanchez, on October 30, 1994:

did then and there unlawfully, intentionally, with the specific intent to commit the offense of SEXUAL ASSAULT-CHILD of [complainant’s name], hereafter styled the Complainant, do an act, to-wit: BY GETTING ON TOP OF THE COMPLAINANT AND UNBUTTONING THE COMPLAINANT’S PANTS, AND EXPOSING HIS SEXUAL ORGAN, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended.

The district court concluded that Sanchez’s prior conviction for this offense was a “crime of violence” within the meaning of § 2L1.2(b)(l)(A)(ii), and increased the base offense level by 16. Sanchez’s crime of illegal reentry occurred in September of 2009, and the district court applied the 2009 Guidelines.

There is no contention before us that under the 2009 Guidelines, the Texas offense of attempted sexual assault of a child had “as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of the definition of “crime of violence” of this Guideline’ provision. 5 Instead, the Government contends that Sanchez’s 1995 Texas conviction for attempted sexual assault of a child qualifies as a crime of violence because that crime constitutes an attempt to commit the enumerated offenses of “statutory rape” and “sexual abuse of a minor.” 6

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Bluebook (online)
667 F.3d 555, 2012 WL 45414, 2012 U.S. App. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sanchez-ca5-2012.