United States v. Jaimes-Jaimes, Rene

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2871

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RENÉ JAIMES-JAIMES,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 03-CR-017-001—J.P. Stadtmueller, Judge.

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ARGUED JUNE 16, 2004—DECIDED MAY 4, 2005

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Before COFFEY, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. René Jaimes-Jaimes pleaded

guilty to one count of being present in the United States

unlawfully after having been deported, 8 U.S.C. § 1326(a).

The parties in their written plea agreement, and the

probation officer in her presentence report, all concurred

that the sentencing court should increase the offense level

by 16 levels because Jaimes (as he calls himself) previously

had been convicted of a “crime of violence.” See U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The district court accepted that position

and determined that Jaimes’s total offense level was 21 and

that his sentencing range was 70 to 87 months. The court

2 No. 03-2871

sentenced him to 78 months’ imprisonment. On appeal,

however, Jaimes argues that the district court committed

plain error by imposing the 16-level increase; Jaimes now

contends that his prior offense is an “aggravated felony” but

not a “crime of violence” under § 2L1.2, and so he should

have been given only an eight-level increase. See U.S.S.G.

§ 2L1.2(b)(1)(C). The sentence imposed by the district court

was indeed plainly erroneous, and we now vacate and

remand for resentencing.

I. BACKGROUND

Jaimes was deported to Mexico in 2001, but in January

2003 he turned up in jail in Milwaukee, Wisconsin, after

being arrested for a drug offense. Jaimes has several prior

convictions, including a Wisconsin state conviction for

“discharging a firearm into a vehicle or building,” Wis. Stat.

§ 941.20(2)(a), an offense he concedes qualifies as an

aggravated felony, see 8 U.S.C. § 1101(a)(43)(F).

The offense guideline applicable to Jaimes’s immigration

violation was amended in November 2001 to provide that a

prior conviction for an “aggravated felony” warrants an

eight-level increase in offense level, but that a conviction for

one of several types of more serious felonies warrants either

a 12-level or a 16-level increase. See U.S.S.G. § 2L1.2(b)(1);

United States v. Vargas-Garnica, 332 F.3d 471, 474 (7th Cir.

2003). The previous guideline had provided that a convic-

tion for any aggravated felony triggered a 16-level increase,

whereas the Guidelines now provide that a defendant with

a conviction for an aggravated felony receives an increase

of between 8 and 16 levels depending on whether his

conviction also meets the requirements for one of the higher

increases. Vargas-Garnica, 332 F.3d at 474. In making the

change, the Sentencing Commission observed that the

previous system “sometimes result[ed] in disproportionate

penalties,” and thus it decided to impose “a more graduated

No. 03-2871 3

sentencing enhancement . . . depending on the seriousness

of the prior aggravated felony and the dangerousness of the

defendant.” U.S.S.G., App. C, amend. 632 (effective Nov. 1,

2001). As relevant here, the Guidelines now provide that a

16-level increase is warranted if the defendant’s prior

conviction qualifies as a “crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

The plea agreement recommended a 16-level increase be-

cause of the parties’ assumption that Jaimes had incurred

a “pre-deportation conviction of a crime of violence.”1 In the

presentence report, the probation officer likewise rec-

ommended a 16-level increase for a crime of violence. At

sentencing the district court read aloud the total offense

level, criminal history score, and imprisonment range rec-

ommended in the presentence report and asked Jaimes’s

counsel, “[D]o you and your client accept those guidelines?”

Counsel responded: “We do. However, we reserve the right

and opportunity to argue for a departure, Your Honor.”

II. ANALYSIS

A. Waiver versus forfeiture

We must first determine whether Jaimes waived or merely

forfeited any challenge to the probation officer’s recommen-

dation that he receive a 16-level increase. Waiver is the in-

tentional relinquishment of a known right. United States v.

Olano, 507 U.S. 725, 733 (1993); United States v. Jacques,

345 F.3d 960, 962 (7th Cir. 2003). Forfeiture is the failure to

timely assert a right. Olano, 507 U.S. at 733; Jacques, 345

1

The plea agreement also states that Jaimes is eligible for the

16-level increase because he previously committed a “firearms

offense,” U.S.S.G. § 2L1.2(b)(1)(A)(iii), but the presentence report

makes no mention of this and the government does not defend the

sentence on this ground, so we ignore it.

4 No. 03-2871

F.3d at 962. Waiver precludes appellate review, but for-

feiture permits review for plain error. Olano, 507 U.S. at

733-34; Jacques, 345 F.3d at 962.

The government contends that Jaimes waived his right to

challenge the calculation of his sentence and directs our

attention to United States v. Staples, 202 F.3d 992, 995 (7th

Cir. 2000). According to the government, we held in Staples

that defense counsel’s representations that he had discussed

the presentence report with his client and that they had no

objections constituted a waiver of a guidelines calculation

included in the report because counsel’s statements evi-

denced that the defendant knew at the time of sentencing

that he could object to that particular sentencing calcula-

tion but affirmatively decided not to object. See id. Here, the

government contends that when Jaimes’s attorney told the

district court at sentencing that he had no objections to the

probation officer’s calculation of the guideline range, Jaimes

likewise waived any challenge to the sentencing calculation

at issue in this appeal.

We do not read Staples as rigidly as the government urges.

Although counsel’s representations obviously are signifi-

cant, a lawyer’s statement at sentencing that the defendant

does not object to anything in the presentence report does

not inevitably constitute a waiver of the defendant’s right

to challenge on appeal any guideline calculation included in

that report. See United States v. Jimenez, 258 F.3d 1120,

1124 (9th Cir. 2001). We indeed have found waiver in cir-

cumstances where defense counsel made a representation

at sentencing similar to the one Jaimes’s counsel made to

the district court here, see United States v. Martinez-Jimenez,

294 F.3d 921, 923 (7th Cir. 2002); United States v.

Richardson, 238 F.3d 837, 841 (7th Cir. 2001); Staples, 202

F.3d at 995, but we do not read our cases as establishing an

inflexible rule that every objection not raised at a sen-

tencing hearing is waived.

No. 03-2871 5

The touchstone of waiver is a knowing and intentional

decision. See United States v. Cooper, 243 F.3d 411, 416 (7th

Cir. 2001) (“Put another way, a forfeiture is an accidental

or negligent omission . . . while a waiver is the manifesta-

tion of an intentional choice not to assert the right.”). There

may be sound strategic reasons why a criminal defendant

will elect to pursue one sentencing argument while also

choosing to forego another, and when the defendant selects

as a matter of strategy, he also waives those arguments he

decided not to present. See id. (finding argument waived

because failure to raise it in district court “was clearly a

strategic decision rather than a mere oversight”);

United States v. Si, 343 F.3d 1116, 1128 n.3 (9th Cir. 2003)

(sentencing argument was waived where defendant did not

object for “tactical reasons”); United States v. Joaquin, 326

F.3d 1287, 1291 (D.C. Cir. 2003) (declining to find waiver

where nothing suggested that defense counsel “made a

conscious, strategic decision” not to object); United States v.

Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997) (defendant

made a “calculated decision” not to object, and therefore

waived argument); United States v. Yu-Leung, 51 F.3d 1116,

1122 (2d Cir. 1995) (characterizing forfeiture as “a matter

of oversight” and waiver as “a tactical matter”).

But in this case we cannot conceive of any strategic rea-

son for Jaimes not objecting to the extra eight-level increase

in his offense level, and the government offers us no sound

reason—indeed no reason at all—why Jaimes would have

opted to bypass a challenge to the 16-level adjustment. We

have previously suggested that an argument should be

deemed forfeited rather than waived if finding waiver from

an ambiguous record would compel the conclusion that

counsel necessarily would have been deficient to advise the

defendant not to object. See Richardson, 238 F.3d at 841.

That is the case here, since the only plausible possibility—if

the 16-level increase is indeed erroneous—is that Jaimes’s

attorney was deficient in electing not to challenge it.

6 No. 03-2871

Defense counsel was not alone in his oversight, for no one

involved with Jaimes’s sentencing—including the Assistant

United States Attorney who now so vigorously argues

waiver, the probation officer, or even the district

judge—appears to have recognized that Jaimes’s prior

offense might not be a “crime of violence.”

We conclude that Jaimes’s failure to object to the 16-level

adjustment resulted from an oversight by defense counsel

and was therefore “accidental rather than deliberate.” Id.

Waiver principles should be construed liberally in favor of

the defendant, United States v. Sumner, 265 F.3d 532, 539

(7th Cir. 2001); Cooper, 243 F.3d at 416; United States v.

Perry, 223 F.3d 431, 433 (7th Cir. 2000), and there is no-

thing in the record before us to suggest that Jaimes had any

idea that the 16-level increase might be erroneous. Forfei-

ture occurs because of neglect while waiver happens

intentionally. See Sumner, 265 F.3d at 537. There is no in-

dication that Jaimes intended to relinquish his right to be

sentenced at the lower offense level, and we can conceive of

no tactical reason why he would choose to be sentenced at

a higher offense level. As we are left with the conclusion

that Jaimes’s failure to challenge the 16-level adjustment

could have resulted only from an oversight by his attorney,

we find that he forfeited, rather than waived, his sentencing

challenge.

B. Sixteen-Level Adjustment

Because Jaimes forfeited his argument concerning the

calculation of his sentence by failing to raise it in the

district court, our review is for plain error. See Olano, 507

U.S. at 732; Cooper, 243 F.3d at 415; see also Fed. R. Crim. P.

52(b). Under a plain error standard, an error must be clear

or obvious and affect substantial rights. Sumner, 265 F.3d

at 539. Even then, we are not required to correct the error

but may exercise our discretion to do so if the error “ ‘seri-

No. 03-2871 7

ously affect[s] the fairness, integrity or public reputation of

judicial proceedings.’ ” United States v. Kibler, 279 F.3d 511,

514 (7th Cir. 2002) (quoting Olano, 507 U.S. at 732).

We begin with the question of whether the increase was

erroneous. The Guidelines state that a defendant should

receive a 16-level adjustment if he has a prior conviction for

a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime

of violence” is defined in § 2L1.2 as:

[A]ny of the following: murder, manslaughter, kid-

napping, aggravated assault, forcible sex offenses,

statutory rape, sexual abuse of a minor, robbery, ar-

son, extortion, extortionate extension of credit,

burglary of a dwelling, or any 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.

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (emphasis added). Jaimes

has not been convicted of any of the enumerated crimes, so

only the latter part of this definition concerns us. Notably,

“crime of violence” is defined more narrowly in § 2L1.2 than

in other contexts because the definition does not encompass

acts involving the use of force against property or acts that

merely pose a risk of harm to another person. See United

States v. Calderon-Pena, 383 F.3d 254, 261 (5th Cir. 2004)

(en banc); United States v. Pimentel-Flores, 339 F.3d 959,

965-66 & nn.7-8 (9th Cir. 2003); cf. United States v.

Gardner, 397 F.3d 1021, 1022-23 (7th Cir. 2005) (U.S.S.G.

§§ 2K2.1 and 4B1.2(a)(2) both define crime of violence to

include conduct that “presents a serious potential risk of

physical injury to another”); Bazan-Reyes v. INS, 256 F.3d

600, 612 (7th Cir. 2001) (crime of violence, as defined in 18

U.S.C. § 16(b), applies to “crimes in which the offender is

reckless with respect to the risk that intentional physical

force will be used in the course of committing the offense”).

8 No. 03-2871

The government contends that Jaimes’s conviction for

“discharging a firearm into a vehicle or building” qualifies

as a crime of violence. The elements of that offense are that

the defendant: (1) “discharged a firearm”; (2) “intentionally

shot the gun into a building” (or vehicle); and (3) “should

have realized that there might be a human being present in

the building” (or vehicle). State v. Grady, 499 N.W.2d 285,

287 (Wis. Ct. App. 1993); see also Wis. Stat. § 941.20(2)(a).

These statutory elements of § 941.20(2)(a) impose no

requirement that the state prove, as an element of the

offense, that the defendant used, attempted to use, or

threatened to use physical force “against the person of

another.” See U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Indeed, the

state need not prove that another person was present in the

vehicle or building, or even anywhere near the targeted

object; all that is necessary given the elements of the offense

is that the state prove that the defendant should have

realized that there might be a person present. See Grady,

499 N.W.2d at 287. The Wisconsin statute requires that the

defendant use force by shooting a gun, see id., but it

provides that the force be directed against a vehicle or a

building, not “against the person of another” as required by

§ 2L1.2.

The government in its brief concedes that “the elements

of Section 941.20(2)(a) do not explicitly require [that] a trier

of fact conclude a defendant used or threatened the use of

physical force against the person of another.” But the

government contends that the firing of a gun into a poten-

tially occupied building nevertheless “poses an immediate,

severe and inherent risk to the safety of another.” The

government is no doubt correct, but the definition of a “crime

of violence” in § 2L1.2—unlike that term’s definition in

§ 4B1.2(a)(2)—does not encompass “conduct that presents a

serious potential risk of physical injury to another.” See

Calderon-Pena, 383 F.3d at 261. We are unwilling to as-

sume, as does the government, that the omission of this

No. 03-2871 9

language from § 2L1.2 carries no significance. The definition

in § 2L1.2 requires the use, attempted use, or threatened

use of force against the person of another, and the govern-

ment concedes that the elements of the offense do not

satisfy this standard.

The government also argues that the district court could

have determined that Jaimes committed a crime of violence

by looking beyond the elements of the offense and consider-

ing the facts that led to his conviction. But examining

Jaimes’s underlying conduct is inappropriate because a

crime of violence must have as an element the use, at-

tempted use, or threatened use of force against another,

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), so a sentencing court

generally may not look beyond the elements of the offense

for which the defendant was convicted. Flores v. Ashcroft,

350 F.3d 666, 670 (7th Cir. 2003); see also United States v.

Shannon, 110 F.3d 382, 384 (7th Cir. 1997) (en banc). No

exception to that general rule applies here. A district court

may look to the underlying conduct if the statute under

which the defendant was convicted is ambiguous in that

there are multiple ways to violate a particular statute, some

of which would qualify for the adjustment and some of

which would not. See Flores, 350 F.3d at 670. That is not

the case with § 941.20(2)(a), so an examination of Jaimes’s

conduct is not permissible. The elements of § 941.20(2)(a) do

not satisfy the definition of a “crime of violence” in § 2L1.2,

and accordingly the application of the 16-level increase was

erroneous.

But it is not enough for us to find that Jaimes’s sentence

resulted from error because, under a plain error standard,

we must also conclude that the error was plain, that it af-

fected Jaimes’s substantial rights, and that it seriously af-

fected the fairness, integrity, or public reputation of judicial

proceedings before we may exercise our discretion to correct

it. Kibler, 279 F.3d at 514. We believe that correcting the

error in Jaimes’s sentence is warranted. First, the error was

10 No. 03-2871

plain. “ ‘Plain’ is synonymous with ‘clear’ or, equivalently,

‘obvious.’ ” Olano, 507 U.S. at 734. The error here is obvious

because, as even the government concedes, there is no

question that the elements of Jaimes’s prior conviction fail

to satisfy the definition of a “crime of violence” set forth in

§ 2L1.2. Second, the error affected Jaimes’s substantial

rights because the imposition of the 16-level in-

crease—rather than an eight-level increase—caused his

imprisonment range to more than double from 30 to

37 months to 70 to 87 months. Finally, we elect to exercise

our discretion to correct the error because we believe the

error impacted the fairness of the proceedings. Jaimes may

have failed to notice the sentencing error, but so did defense

counsel, the Assistant United States Attorney, the proba-

tion officer, and the district court judge, and we conclude

that it would be unjust to place the entire burden for these

oversights on Jaimes by permitting him to serve an exces-

sive prison sentence.

C. Impact of United States v. Booker

Shortly after argument in this appeal, the Supreme Court

decided Blakely v. Washington, 124 S. Ct. 2531 (2004). We

granted Jaimes’s motion to suspend this appeal pending the

Supreme Court’s decision on the applicability of Blakely to

the federal sentencing guidelines. The Court has now held

that the Guidelines are to be considered advisory rather

than mandatory. See United States v. Booker, 125 S. Ct.

738, 756-57 (2005). Booker does not change our conclusion

that plain error occurred in this case because the district

court, interpreting the Guidelines as mandatory, sentenced

Jaimes under an incorrect offense level that more than

doubled his range of imprisonment. Because the Guidelines

are now advisory, the district court must consider the cor-

rect guideline range when determining a new sentence, but

may “tailor the sentence in light of other statutory concerns

as well.” Id. at 757.

No. 03-2871 11

III. CONCLUSION

The district court committed plain error by imposing a 16-

level increase under U.S.S.G. § 2L1.2. Accordingly, Jaimes’s

sentence is VACATED, and this case is REMANDED to the

district court for resentencing.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-4-05