USA v. Jose Mendez-Casarez

Filing

PUBLISHED OPINION FILED. [09-40825 Affirmed ] Judge: JLD , Judge: PRO , Judge: LHS Mandate pull date is 11/05/2010 for Appellant Jose Miguel Mendez-Casarez [09-40825]

USA v. Jose Mendez-Casarez

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 15, 2010 N o . 09-40825 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t iff - Appellee v. J O S E MIGUEL MENDEZ-CASAREZ, D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Southern District of Texas

Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges. D E N N IS , Circuit Judge: D e fe n d a n t Jose Miguel Mendez-Casarez pleaded guilty to one count of ille g a l reentry in violation of 8 U.S.C. § 1326(a). The district court sentenced h im to 41 months of imprisonment and two years of supervised release. Mendez-Casarez appeals his sentence, contending that the district court erred in determining that a prior conviction for solicitation to commit assault was a c r im e of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) and a c c o r d in g ly imposing a sixteen-level sentence enhancement. We disagree, a n d affirm the district court's judgment.

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No. 09-40825 I . BACKGROUND M e n d e z -C a s a r e z was convicted in 2000 of solicitation to commit assault w it h a deadly weapon inflicting serious injury under North Carolina law. He w a s deported in 2006. On November 14, 2008, Mendez-Casarez pleaded g u ilt y to one count of being unlawfully present in the United States after d e p o r t a t io n in violation of 8 U.S.C. § 1326(a) and (b). The presentence report (P S R ) calculated a base offense level of eight, to which it applied a sixteenle v e l enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on MendezC a s a r e z 's 2000 North Carolina conviction for solicitation to commit assault w it h a deadly weapon inflicting serious injury. The PSR applied a two-level a d ju s tm e n t for acceptance of responsibility, producing a total offense level of t w e n t y -t w o . His total offense level, in combination with a Criminal History C a t e g o r y of III, yielded a Guidelines range of 51-63 months. Mendez-Casarez submitted objections to the PSR, including an o b je c t io n to the sixteen-level enhancement. The district court overruled the o b je c t io n and imposed the enhancement. The district court granted MendezC a s a r e z an additional one-level reduction for acceptance of responsibility, on t h e Government's motion, and found that his offense level was twenty-one, y ie ld in g a Guidelines range of 46-57 months. The district court also found t h a t Category III over-represented Mendez-Casarez's criminal history and d e p a r t e d downward to the range corresponding to an offense level of twentyo n e and a Criminal History Category of II. The district court sentenced M e n d e z -C a s a r e z to a within-Guidelines sentence, using the new range, of 41 m o n th s . Mendez-Casarez timely appealed. II. STANDARD OF REVIEW " W e review the district court's interpretation and application of the S e n te n c in g Guidelines de novo, and its factual determinations for clear error." United States v. Jimenez, 509 F.3d 682, 693 (5th Cir. 2007). When sentencing 2

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No. 09-40825 a defendant, the district court "must first calculate the Guidelines range and c o n s id e r the appropriateness of a sentence within that sentencing range to fu lfill its duty to consider the Sentencing Guidelines as advisory and as a fr a m e of reference." United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2 0 0 6 ). The question of whether a state conviction qualifies as a crime of v io le n c e for the purposes of the sixteen-level enhancement is a legal question t o be reviewed de novo. United States v. Calderon-Pena, 383 F.3d 254, 256 (5 t h Cir. 2004) (en banc). I I I . DISCUSSION S e c t io n 2L1.2 of the Sentencing Guidelines calls for a sixteen-level e n h a n c e m e n t to a defendant's offense level if the defendant was previously d e p o r t e d or unlawfully remained in the United States after a conviction for a fe lo n y that is a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The G u id e lin e s commentary defines "crime of violence" for the purpose of this e n h a n c e m e n t as any of a list of offenses, which include murder, kidnapping, r o b b e r y , and aggravated assault. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The G u id e lin e s commentary also explains that prior convictions for this purpose " in c lu d e the offenses of aiding and abetting, conspiring, and attempting, to c o m m it such [violent] offenses." U.S.S.G. § 2L1.2 cmt. n.5. The parties do not d is p u t e whether the underlying substantive offense of assault with a deadly w e a p o n inflicting serious injury constitutes a crime of violence. Rather, the q u e s t io n in this case is whether solicitation to commit assault with a deadly w e a p o n inflicting serious injury constitutes a crime of violence similar to the w a y that conspiring, attempting, or aiding and abetting in the commission of a s s a u lt with a deadly weapon inflicting serious injury does.1 We previously
Our inquiry here is distinct from that undertaken to determine whether a prior conviction constitutes a crime of violence under U.S.S.G. § 4B1.1(a). See generally Begay v. United States, 553 U.S. 137 (2008).
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No. 09-40825 n o te d but did not reach this question in United States v. Sandoval-Ruiz, 543 F .3 d 733, 738 (5th Cir. 2008). Three courts of appeals have differed in their treatment of solicitation c o n v ic t io n s as predicate offenses for sentence enhancements. The Tenth C ir c u it held that an Arizona conviction for solicitation to commit burglary of a d w e llin g constituted a crime of violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th C ir . 2006). Similarly, the Ninth Circuit held that an Oregon conviction for s o lic it a t io n of delivery of cocaine constituted a controlled substance offense for t h e purposes of U.S.S.G. § 4B1.1(a), which includes "aiding and abetting, c o n s p ir in g , and attempting" to commit such an offense, U.S.S.G. § 4B1.2 cmt. n .1 . United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir. 2003). In c o n t r a s t , the Sixth Circuit held that a Florida conviction for solicitation to t r a ffic in cocaine did not constitute a controlled substance offense for the p u r p o s e s of U.S.S.G. § 4B1.1(a). United States v. Dolt, 27 F.3d 235, 240 (6th C ir . 1994). Relatedly, the Second Circuit held that a New York conviction for c r im in a l facilitation of the sale of cocaine did not constitute a controlled s u b s t a n c e offense for the purposes of U.S.S.G. § 4B1.1(a). United States v. L ir a n z o , 944 F.2d 73, 79 (2d Cir. 1991). The result reached by the Second C ir c u it is not directly relevant for our purposes, because criminal facilitation is a different crime from solicitation. Nonetheless, we refer to Liranzo because t h e principles that the Second Circuit applied in determining whether U .S .S .G . § 4B1.1(a) encompassed criminal facilitation are consistent with t h o s e applied by the courts in Cornelio-Pena, Shumate, and Dolt, and which w e apply here. Our consideration of whether solicitation to commit assault under North C a r o lin a law qualifies as a crime of violence proceeds in two parts. First, 4

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No. 09-40825 b e c a u s e solicitation is not explicitly listed in U.S.S.G. § 2L1.2 cmt. n.5 as a c r im e of violence, we must determine whether that list is exhaustive. Second, if the list in U.S.S.G. § 2L1.2 cmt. n.5 is not exhaustive, the next question is w h e t h e r it covers the crime of solicitation of assault with a deadly weapon in flic t in g serious injury. We conclude that the list in U.S.S.G. § 2L1.2 cmt. n.5 is not exhaustive, and can include offenses other than those enumerated. We a ls o conclude that the list in U.S.S.G. § 2L1.2 cmt. n.5 covers solicitation of a s s a u lt with a deadly weapon inflicting serious injury because solicitation is s u ffic ie n t ly similar to conspiracy, which is one of the enumerated offenses in t h e list. A. F ir s t , we conclude that the phrase in U.S.S.G. § 2L1.2 cmt. n.5 e x p la in in g that "[p]rior convictions of [violent] offenses . . . include the offenses o f aiding and abetting, conspiring, and attempting, to commit such [violent] o ffe n s e s " is not an exhaustive list. The commentary to the Guidelines' " G e n e r a l Application Principles" states that "the term `includes' is not e x h a u s t iv e ." U.S.S.G. § 1B1.1 cmt. n.2. Given the Sentencing Commission's e x p lic it statement, because the list in U.S.S.G. § 2L1.2 cmt. n.5 begins with t h e word "include," the offenses listed -- aiding and abetting, conspiring, and a t t e m p t in g -- must be interpreted as examples, rather than an exclusive list. Cornelio-Pena, 435 F.3d at 1284 (reasoning that the list in U.S.S.G. § 2L1.2 c m t . n.5 was not exhaustive because of the Guidelines commentary on the w o r d "include"); Shumate, 329 F.3d at 1028 (holding that the word "include," w h ic h was explained by the Guidelines commentary to be non-exhaustive, r e n d e r e d the omission of solicitation in U.S.S.G. § 4B1.2 cmt. n.1 legally in s ig n ific a n t ). Even the courts of appeal that have not explicitly addressed the w o r d "include" have nevertheless also concluded that the phrase "include the o ffe n s e s of aiding and abetting, conspiring, and attempting" is not exhaustive. 5

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No. 09-40825 D o lt, 27 F.3d at 239; Liranzo, 944 F.2d at 79. Thus, the fact that solicitation is n o t included in the list of offenses in U.S.S.G. § 2L1.2 cmt. n.5 is not d is p o s it iv e as to whether Mendez-Casarez's conviction of solicitation to commit a s s a u lt with a deadly weapon constitutes a crime of violence. B. W e next conclude that the list in U.S.S.G. § 2L1.2 cmt. n.5 encompasses M e n d e z -C a s a r e z 's prior conviction of solicitation to commit assault with a d e a d ly weapon. The courts of appeal that have addressed the question of w h e t h e r to include a prior offense in a list where it is not enumerated agree t h a t the relevant inquiry involves comparing the offense in the statute of prior c o n v ic t io n to the offenses enumerated in the list. See Cornelio-Pena, 435 F.3d a t 1286 (holding that solicitation is "sufficiently similar" to the listed offenses in U.S.S.G. § 2L1.2 cmt. n.5 to warrant inclusion); Dolt, 27 F.3d at 240 (h o ld in g that solicitation "is not sufficiently similar" to the listed offenses in U .S .S .G . § 4B1.2 cmt. n.1. to warrant inclusion ); Liranzo, 944 F.2d at 79 (h o ld in g that criminal facilitation is "unlike" the listed offenses in U.S.S.G. § 4B1.2 cmt. n.1. and thus should not be included).2 In particular, the a n a ly s is involves comparing the mens rea (mental state) and actus reus (action o r conduct) of the prior offense to those of conspiracy, aiding and abetting, and a t t e m p t . Cornelio-Pena, 435 F.3d at 1286-87; Dolt, 27 F.3d at 238-40; Liranzo, 9 4 4 F.2d at 79. The purpose of comparing offenses is to avoid categorizing a prior o ffe n s e as a predicate offense that qualifies a defendant for sentence

The only case in which a court of appeal did not compare the offenses is Shumate, because the Ninth Circuit relied on a previous decision in order to hold that the word "include" was dispositive in determining whether the list in U.S.S.G. § 4B1.2 cmt. n.1 encompassed solicitation. Shumate, 329 F.3d at 1030-31 (citing United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996)). Nonetheless, the Ninth Circuit's reasoning is not inconsistent with our comparison analysis.

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No. 09-40825 e n h a n c e m e n t when the prior offense is clearly less serious than the offenses e n u m e r a t e d as constituting the substantive offense. See Cornelio-Pena, 435 F .3 d at 1286 (explaining that "[b]ecause conspiracy and solicitation have s im ila r mens rea and actus reus requirements and are of similar severity, they a r e sufficiently similar to be included together in [U.S.S.G. § 2L1.2 cmt. n.5]"); D o lt, 27 F.3d at 238 (determining that "aiding and abetting is clearly a more s e r io u s crime" than solicitation and thus that the two could not be considered s u ffic ie n t ly similar for the purpose of determining whether the list in U.S.S.G. § 4B1.2 cmt. n.1. encompassed solicitation); Liranzo, 944 F.2d at 79 (holding t h a t criminal facilitation is different from conspiracy, aiding and abetting, and a t t e m p t , because the latter three offenses all require intent to commit the u n d e r ly in g offense, whereas criminal facilitation requires a less serious mens r e a ). Thus, if the mens rea and actus reus of Mendez-Casarez's prior c o n v ic t io n are clearly less serious than those of conspiracy, aiding and a b e t tin g , and attempt, as defined by their generic contemporary meanings, t h e n we would conclude that his prior conviction does not constitute a crime of v io le n c e . Conversely, if the mens rea and actus reus of Mendez-Casarez's prior c o n v ic t io n are not clearly less serious than those of one or more of the three o t h e r offenses, then we would conclude that his prior conviction does c o n s t it u t e a crime of violence for the purpose of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Mendez-Casarez was convicted of the North Carolina crime of s o lic it a t io n to commit assault with a deadly weapon inflicting serious injury. Although the penalty for committing solicitation is outlined in state statutes, s e e N.C. Gen. Stat. § 14-2.6(a), the crime itself is defined only in common law: Soliciting another person to commit a felony is a crime in North C a r o lin a . Counseling, enticing or inducing another to commit a crime is the gravamen of the crime of solicitation. Solicitation is c o m p le t e when the request to commit a crime is made, regardless o f whether the crime solicited is ever committed or attempted.

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No. 09-40825 S ta te v. Richardson, 395 S.E.2d 143, 147-48 (N.C. Ct. App. 1990). In North C a r o lin a , "to hold a defendant liable for the substantive crime of solicitation, t h e State must prove a request to perform every essential element of the [u n d e r ly in g ] crime." State v. Suggs, 453 S.E. 2d 211, 215 (N.C. Ct. App. 1995). Thus, to convict a defendant of solicitation to commit assault with a deadly w e a p o n inflicting serious injury, the state must prove to the jury beyond a r e a s o n a b le doubt that the solicitor requested the use of a deadly weapon as w e ll as infliction of serious injury in the commission of the assault. Id. at 216 (h o ld in g that evidence proving only that the defendant asked another person t o inflict serious injury on the victim was insufficient to convict the defendant o f solicitation to commit assault with a deadly weapon inflicting serious in ju r y , because serious injury could be inflicted without a deadly weapon). This is the definition of Mendez-Casarez's prior conviction to which we refer. The Sentencing Commission has not defined conspiracy, attempt, or a id in g and abetting in its Guidelines or commentary. Where the Guidelines d o not define predicate offenses, sentencing courts should define them " a c c o r d in g to [their] `generic, contemporary meaning[s].'" United States v. D o m in g u e z -O c h o a , 386 F.3d 639, 642-43 (5th Cir. 2004) (quoting Taylor v. U n ite d States, 495 U.S. 575, 598 (1990)). The generic, contemporary meanings o f offenses can be found as they are defined "in the criminal codes of most S t a te s ," the Model Penal Code, and treatises such as Wayne R. LaFave & A u s t in W. Scott, Substantive Criminal Law (1986).3 Taylor, 495 U.S. at 598. H e r e , we use the generic, contemporary meaning of conspiracy for comparison w it h the definition of solicitation under North Carolina law. Conspiracy is characterized by "an agreement between two or more p e o p le for the purposes of promoting or committing a crime." Cornelio-Pena,
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A new edition of Substantive Criminal Law has been printed since Taylor was decided: Wayne R. LaFave, Substantive Criminal Law (2d ed. 2003).

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No. 09-40825 4 3 5 F.3d at 1285; see also Model Penal Code § 5.03(1). In many jurisdictions, t h e definition of conspiracy also includes an overt act. Cornelio-Pena, 435 F.3d a t 1286; Dolt, 27 F.3d at 238; 2 Wayne R. LaFave, Substantive Criminal Law § 1 2 .2 (b ), at 271-72 (2d ed. 2003) (explaining that "most of the states now r e q u ir e [in their conspiracy statutes] that an overt act . . . be proven . . . "). We conclude that the mens rea and actus reus of solicitation are not c le a r ly less serious than those of conspiracy. First, both offenses require the s a m e mens rea: the defendant must intend that the underlying crime be c o m m it t e d . Cornelio-Pena, 435 F.3d at 1286; Suggs, 453 S.E. 2d at 215.4 S e c o n d , as to the actus reus, both offenses involve the defendant taking a step, whether agreeing or soliciting, towards fulfilling his intention that the c r im e be committed. Cornelio-Pena, 435 F.3d at 1286. The acts of soliciting a n d agreeing "are of similar severity." Id. Indeed, the difference between the t w o acts is whether the other person agrees to commit the crime: a defendant w h o s e solicitation happens to be declined has only solicited, whereas a d e fe n d a n t whose solicitation happens to be accepted has entered an agreement a n d become a conspirator. Given how closely related the two acts are, we do n o t think that the response of the other person determines the seriousness of t h e acts of soliciting or agreeing.5

In contrast, other crimes, such as criminal facilitation and accessory after the fact, do not require that the defendant intend that the underlying crime be committed. See Liranzo, 944 F.2d at 79 (explaining that "unlike the crimes of aiding and abetting, conspiracy, or attempt, the crime of criminal facilitation does not involve the intent to commit the underlying substantive offense"); 2 LaFave, supra, § 13.6(a), at 400 (explaining that a defendant can only be an accessory after the fact after the underlying crime has already been committed).

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Accordingly, we find the Sixth Circuit's reasoning that solicitation is less serious than conspiracy because a solicitee could decline a solicitation, Dolt, 27 F.3d at 238-39, to be unpersuasive.

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No. 09-40825 N o r does the overt act requirement included in many jurisdictions' c o n s p ir a c y statutes change our assessment that the actus reus of solicitation is n o t clearly less serious than that of conspiracy. It is true that most ju r is d ic t io n s require that in a conspiracy, there must be an agreement as well a s an overt act undertaken by one of the conspirators. 2 LaFave, supra, § 12.2(b), at 271-72. Solicitation does not have an overt act requirement. Dolt, 2 7 F.3d at 239. However, this additional requirement does not elevate the le v e l of seriousness of conspiracy, because "the [overt] act need not be criminal o r unlawful in itself." 2 LaFave, supra, § 12.2(b), at 272. T h e function of the overt act in a conspiracy prosecution is s im p ly to manifest `that the conspiracy is at work,' . . . and is n e it h e r a project still resting solely in the minds of the c o n s p ir a t o r s nor a fully completed operation no longer in e x is te n c e . Yates v. United States, 354 U.S. 298, 334 (1957) (quoting Carlson v. United S ta te s , 187 F.2d 366, 370 (10th Cir. 1951)), overruled on other grounds by B u r k s v. United States, 437 U.S. 1 (1978); see also 2 LaFave, supra, § 12.2(b), a t 273 (same). See also Ianelli v. United States, 420 U.S. 770, 786 n.17 (1977) (e x p la in in g that an overt act "can be innocent in nature, provided it furthers t h e purpose of the conspiracy"). In sum, the acts of soliciting and agreeing are similar, and we do not fin d the distinctions drawn between the actus reus requirements of solicitation a n d conspiracy to be dispositive in making one offense more clearly serious t h a n the other. We therefore conclude that the actus reus of solicitation is not c le a r ly less serious than that of conspiracy. As solicitation need only be similar to one of the listed offenses in U .S .S .G . § 2L1.2 cmt. n.5, we need not compare solicitation to aiding and a b e t tin g or attempt in order to hold that U.S.S.G. § 2L1.2 cmt. n.5 e n c o m p a s s e s Mendez-Casarez's prior conviction of solicitation to commit

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No. 09-40825 a s s a u lt with a deadly weapon inflicting serious injury. Thus, the district court c o r r e c t ly concluded that Mendez-Casarez's prior conviction constitutes a crime o f violence for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). C. M e n d e z -C a s a r e z argues that the rule of lenity should operate in his fa v o r because there is a division of authority on the question of whether to c a t e g o r iz e solicitation convictions as predicate offenses for the purpose of s e n te n c e enhancement.6 However, a division between courts of appeal does n o t automatically render a Sentencing Guideline ambiguous. Reno v. Koray, 5 1 5 U.S. 50, 64-65 (1995) ("A statute is not ambiguous for purposes of lenity m e r e ly because there is a division of judicial authority over its proper c o n s t r u c t io n . The rule of lenity applies only if, after seizing everything from w h ic h aid can be derived, we can make no more than a guess as to what C o n g r e s s intended." (citations and quotation marks omitted)). As the S u p r e m e Court concluded in Reno, "That is not this case." Id. at 65. In the in s t a n t case, we have used the tools of interpretation available to us to discern t h e intent of the Sentencing Commission, and so the rule of lenity does not o p e r a t e in Mendez-Casarez's favor.7

See United States v. Bustillos-Pena, 612 F.3d 863, 868 (5th Cir. 2010) ("Although the provisions of the Sentencing Guidelines are not statutes, we apply the rule of lenity to them when we find that they are ambiguous."). Relatedly, Mendez-Casarez contends that interpreting the list in U.S.S.G. § 2L1.2 cmt. to be non- exhaustive would render it unconstitutionally vague, because a defendant could not know ahead of time what crimes would qualify him for sentence enhancement. We find his argument unpersuasive. In this case, any other offenses must be sufficiently similar to the listed offenses in order to be included under U.S.S.G. § 2L1.2 cmt. n.5. The list "is not so indefinite as to prevent an ordinary person from understanding what conduct" qualifies a defendant for sentence enhancement. James v. United States, 550 U.S. 192, 210 n.6 (2007) (holding that the Armed Career Criminal Act provision that categorizes any offense that "involves conduct that presents a serious potential risk of physical injury to another" as a "violent felony" is not unconstitutionally vague).
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No. 09-40825 I V . CONCLUSION Because the district court did not err in applying a sixteen-level e n h a n c e m e n t to Mendez-Casarez's sentence for his prior conviction of s o lic it a t io n of assault with a deadly weapon inflicting serious injury, which it p r o p e r ly deemed a crime of violence under U.S.S.G. § 2L1.2 cmt. n.5, we A F F IR M Mendez-Casarez's sentence.

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