United States v. Martinez-Paramo

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT August 4, 2004

Charles R. Fulbruge III

No. 03-41031 Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUBEN MARTINEZ-PARAMO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE, EMILIO M. GARZA, and STEWART, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For Ruben Martinez-Paramo’s challenge to his conviction and

sentence, primarily at issue is whether, for sentence enhancement

purposes, his prior Pennsylvania conviction for the misdemeanor

offense of terroristic threats is a requisite “crime of violence”

under § 2L1.2 of the Sentencing Guidelines. The record is not

sufficient to decide that issue. He acknowledges our precedent

forecloses his constitutional challenge to his guilty-plea

conviction. We AFFIRM the conviction; VACATE the sentence; and

REMAND for resentencing.

I.

In early 2003, Martinez-Paramo, a Mexican citizen, pleaded

guilty to being knowingly and unlawfully present in the United

States after a previous deportation, in violation of 8 U.S.C. §

1326(a) and (b). The Guidelines mandate a base-level of eight for

that offense. U.S.S.G. § 2L1.2(a) (2002). Pursuant to Guidelines

§ 2L1.2(b)(1)(A)(ii), the presentence investigation report (PSR)

recommended that Martinez-Paramo’s sentence be increased by 16

levels for his previous deportation following a criminal conviction

for a “crime of violence” (COV). The claimed COV was Martinez-

Paramo’s July 2000 Pennsylvania conviction for terroristic threats,

subsequent to which he was deported in 2002.

Over Martinez-Paramo’s objections to the PSR and at

sentencing, the district court held the Pennsylvania conviction was

a § 2L1.2 COV. After a three-level acceptance of responsibility

downward adjustment, Martinez-Paramo’s total offense level was 21.

Based on his category IV criminal history, his sentencing range was

57-71 months. The district court granted the Government’s downward

departure motion and sentenced Martinez-Paramo, inter alia, to 41

months.

II.

Martinez-Paramo presents two issues. He acknowledges his

challenge to his conviction fails; on this record, we cannot decide

the challenge to his sentence.

A.

Concerning his conviction, Martinez-Paramo claims 8 U.S.C. §

1326(b)(1) and (2) are unconstitutional in the light of Apprendi v.

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New Jersey, 530 U.S. 466 (2000). He admits, however, that relief

is foreclosed by Almendarez-Torrez v. United States, 523 U.S. 224

(1998). E.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000), cert. denied, 531 U.S. 1202 (2002), overruled on other

grounds by, United States v. Reyna, 358 F.3d 344 (5th Cir. 2004)(en

banc). The issue is raised only to preserve it for possible review

by the Supreme Court.

B.

Concerning his sentence, Martinez-Paramo claims his previous

conviction in Pennsylvania for terroristic threats is not a COV

under § 2L1.2. The district court’s findings of fact are reviewed

only for clear error; its interpretation and application of the

Guidelines, de novo. E.g., United States v. Charles, 301 F.3d 309,

312-13 (5th Cir. 2002) (en banc) (citation omitted).

Under § 2L1.2, a COV

(I) means an 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; and

(II) includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex

offenses (including sexual abuse of a minor),

robbery, arson, extortion, extortionate

extension of credit, and burglary of a

dwelling.

U.S.S.G. § 2L1.2, Application Note 1(B)(ii) (emphasis added).

Because terroristic threats is not an offense enumerated in part

II, Martinez-Paramo’s Pennsylvania conviction for such threats can

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be a COV only if it “has as an element the use, attempted use, or

threatened use of physical force against [the person of] another”.

Id. (emphasis added). See United States v. Rodriguez-Rodriguez,

323 F.3d 317, 318-19 (5th Cir. 2003) (analyzing conviction at issue

separately under each part of COV definition); United States v.

Rayo-Valdez, 302 F.3d 314, 316-319 (5th Cir.), cert. denied, 537

U.S. 1095 (2002) (holding offense specifically enumerated as COV

need not involve, as an element, use of force).

Because the COV definition includes the “as an element”

phrase, a categorical approach is employed; in other words, the

facts underlying a conviction are not considered. Instead, we

“look only to the fact of conviction and the statutory definition

of the prior offense to determine whether a prior conviction

qualifies as a predicate offense for sentencing enhancement

purposes”. Rodriguez-Rodriguez, 323 F.3d at 318-19. See also

Taylor v. United States, 495 U.S. 575, 602 (1990) (using

categorical approach to interpret COV at 18 U.S.C. § 924(e)).

Restated, the § 2L1.2 16-level COV enhancement depends “upon

whether the predicate offense has the use of force as an element of

the crime”. United States v. Vargas-Duran, 356 F.3d 598, 605 (5th

Cir. 2004) (en banc) (citations omitted) (holding use of force

required under § 2L1.2 must be intentional).

4

For examining the elements of the Pennsylvania “terroristic

threats” misdemeanor offense, the version of the statute under

which Martinez-Paramo was convicted states:

A person commits the crime of terroristic

threats if the person communicates, either

directly or indirectly, a threat to: (1)

commit any crime of violence with intent to

terrorize another; (2) cause evacuation of a

building, place of assembly or facility of

public transportation; or (3) otherwise cause

serious public inconvenience with reckless

disregard of the risk of causing such terror

or inconvenience.

18 PA. CONS. STAT. § 2706(a) (2003) (emphasis added). A COV, as used

in § 2706(a)(1), is not, however, defined in the Pennsylvania

statute. In any event, because the terroristic threats statute

contains one subsection which arguably qualifies as a COV and two

subsections which arguably do not, the Government contended in

district court and on appeal that we can look beyond the fact of

conviction to determine the elements of the statute to which

Martinez-Paramo pleaded guilty.

The Government is correct that, although the statutory

definition of an offense is our primary guide, the categorical

approach “does not preclude looking beyond the fact of conviction

in all situations”. United States v. Allen, 282 F.3d 339, 342 (5th

Cir. 2002). In Taylor, the Supreme Court examined whether the

defendant’s conviction was a “burglary” under 18 U.S.C. § 924(e)

and held the sentencing court could go beyond the mere fact of

conviction in a “narrow range of cases where the jury was actually

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required to find all the elements of generic burglary”. 495 U.S.

at 602. Taylor hypothesized a burglary statute that includes both

entry into an automobile and into a building, in which the

guideline provided that automobile-entry did not qualify for an

enhancement, but building-entry did. Id. For such a situation,

Taylor held that, for enhancement purposes, the sentencing court

was permitted to look to the indictment and jury instructions, if

they showed: the defendant was charged only with burglary of a

building; and the jury necessarily had to find entry into the

building to convict. Id.

By extension, where a defendant pleads guilty to an offense,

we have allowed the sentencing court to look to the indictment to

determine the elements of the statute to which the defendant

pleaded guilty. E.g., United States v. Landeros-Gonzales, 262 F.3d

424, 426 (5th Cir. 2001) (treating separately subsections of a

comprehensive criminal statute and looking at indictment for

sentence enhancement purposes). Calderon-Pena, 339 F.3d 320 (5th

Cir. 2003), vacated for reh’g en banc, 362 F.3d 293 (5th Cir.

2004), followed Taylor and relied on the indictment where the

statute of conviction contained disjunctive elements. Our en banc

court has not decided Calderon-Pena; however, in the light of

Taylor and Landeros-Gonzales, it is proper to look beyond the fact

of conviction to determine the elements of the terroristic threats

statute to which Martinez-Paramo pleaded guilty.

6

The record does not contain an information or indictment

charging Martinez-Paramo with the terroristic threats offense.

Instead, it contains only the criminal complaint and a sentencing

sheet.

The criminal complaint states: Martinez-Paramo was accused of

violating the above-quoted Pennsylvania statute, 18 PA. CONS. STAT.

§ 2706(a) (again, § 2706(a) has three subsections); and “[he] did

threaten to commit a crime of violence with the intent to

terrorize”. (Emphasis added.) The complaint also includes the

arresting officer’s affidavit, detailing the facts underlying the

arrest.

The sentencing sheet appears similar to a judgment of

conviction and lists two charges to which Martinez-Paramo pleaded

guilty and the sentence for each, including one charge of

terroristic threats; it does not, however, cite the section number

of the terroristic threats statute or include language indicating

which of the three subsections may have been involved.

In sum, only the criminal complaint (including the attached

affidavit describing Martinez-Paramo’s conduct) indicates that

Martinez-Paramo ultimately may have been charged with, and pleaded

guilty to, violating § 2706(a)(1) (“threat to (1) commit any crime

of violence with intent to terrorize another”), rather than

subsection (a)(2) or (a)(3). More is needed.

7

Although the district court noted at sentencing that the

criminal complaint was not a charging document, it did not decide

whether the documents in the record were sufficient to determine

the elements of the terroristic threats statute to which Martinez-

Paramo pleaded guilty. Instead, at the Government’s urging, it

relied on Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002), and held

all three subsections of the Pennsylvania statute (§ 2706(a)) fit

the § 2L1.2 COV definition, thereby obviating the need to parse the

statute’s subsections.

Bovkun addressed a prior version of the terroristic threats

statute and held it to be a COV under 18 U.S.C. § 16(a), which

defines such a crime as, inter alia, “an offense that has as an

element the use, attempted use or threatened use of physical force

against the person or property of another”. (Emphasis added.) As

discussed, under Guidelines § 2L1.2 at issue, the force must be

against a person; under 18 U.S.C. § 16(a), it can also be against

property. Even assuming, arguendo, that the § 16(a) COV definition

is sufficiently similar to § 2L1.2’s to consider Bovkun relevant,

Bovkun is nevertheless distinguishable because Martinez-Paramo was

convicted under § 2706(a) in 2000, after its being amended in 1999

had significantly changed its meaning.

The previous statute did not break the offense into separate

subsections; rather, it provided:

A person is guilty of a misdemeanor of the

first degree if he threatens to commit any

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crime of violence with intent to terrorize

another or to cause evacuation of a building,

place of assembly, or facility of public

transportation, or otherwise to cause serious

public inconvenience, or in reckless disregard

of the risk of causing such terror or

inconvenience.

18 PA. CONS. STAT. § 2706 (1998) (emphasis added). Bovkun read the

pre-amendment statute as requiring a threat to commit a COV in each

of the three situations; that court considered the subsequent list

to be the different mens rea which could accompany the requisite

actus reus of a threat to commit a COV. 283 F.3d at 166.

In stark contrast to Bovkun’s interpretation of the earlier

statute, the amended statute at issue clarifies that the offense is

committed by communicating a threat to act in any of three ways:

to commit a COV; to cause evacuation of a building; or otherwise to

cause serious public inconvenience. Restated, the amended statute

sets out three separate offenses; only the first is a “threat to

commit” a COV. Because Bovkun interpreted the prior statute as

requiring the “threat to commit” a COV for every terroristic

threats conviction, it is not applicable to deciding whether a

conviction under the version at issue involves a COV. Although

Bovkun noted that the subsequent amendment to the statute did not

appear to alter the meaning of the provision, that statement is

dictum. Id. at 169.

Bovkun’s being inapplicable, we turn to whether it is proper

to look to the criminal complaint (in the record) to determine

9

whether Martinez-Paramo’s prior conviction is a COV under

Guidelines § 2L1.2. In United States v. Turner, 349 F.3d 833, 836

(5th Cir. 2003) (Turner II), we refused to consider the defendant’s

charging instrument in order to determine whether his prior

conviction was a COV under Guidelines § 4B1.2(a)(2), because the

defendant had pleaded guilty to a lesser offense. Because “a

district court may not rely on a charging document without first

establishing that the crime charged was the same crime for which

the defendant was convicted”, id. (quoting United States v. Spell,

44 F.3d 936, 940 (11th Cir. 1995)) and because there was no

document charging Turner with the lesser offense, the indictment

could not be relied upon to determine the elements for which he was

convicted, id. (In United States v. Turner, 305 F.3d 349, 351 (5th

Cir. 2002) (Turner I), discussed infra, we had remanded for review

of the charging instrument to determine whether defendant’s

conviction was a COV). See also Allen, 282 F.3d at 342-43 (holding

district court exceeded Taylor’s limits in relying on a police

report to determine whether a prior conviction was a “serious drug

offense” under 18 U.S.C. § 924(e)(2)(A)(ii), where the indictment

did not answer the question).

The criminal complaint states Martinez-Paramo threatened to

commit a COV with the intent to terrorize, and the facts stated in

the affidavit support the offense involved being under §

2706(a)(1); the record does not reflect, however, whether the

10

complaint is legally sufficient under Taylor and Turner II to

determine that Martinez-Paramo pleaded guilty to a particular

subsection of § 2706(a) — again, a misdemeanor. In this regard,

Pennsylvania courts have held a criminal complaint alone sufficient

to support a valid guilty plea or conviction, even in the absence

of an information or indictment; but, “[o]rdinarily, the

requirement of formal notice is satisfied by the defendant’s

receipt of the criminal information”. Commomnwealth v. Hatchin,

709 A.2d 405, 408 (Pa. Super. Ct. 1998) (holding criminal complaint

sufficient to support conviction if meets certain notice

requirements); Commonwealth v. Clark, 511 A.2d 1382, 1384 (Pa.

Super. Ct. 1986) (holding same in guilty plea context).

In addition to the criminal complaint in the record, an

information or indictment (neither in the record) may exist which

charged Martinez-Paramo under another portion of the statute or may

not have specified under which subsection he was charged. In fact,

the Government stated at oral argument that an information does

exist.

Therefore, we cannot tell from this record whether the

criminal complaint was used when Martinez-Paramo pleaded guilty or

if there was another document which stated the charge(s) against

him. Because the record does not reflect the elements to which he

pleaded guilty, we cannot determine whether Martinez-Paramo’s

conviction was a § 2L1.2 COV. We do not decide, however, whether

11

an information or indictment is the only document which could

properly establish that he pleaded guilty to a particular

subsection of the statute. That task remains initially for the

district court on resentencing.

Accordingly, we remand to the district court for the

Government to supplement the record, if it can, with charging

documents, as well as others, which may establish to which elements

Martinez-Paramo pleaded guilty. Not only did the Government state

at oral argument that an information exists, but also that the plea

agreement and plea colloquy are available. Upon the record being

supplemented, the district court should address whether the new

documents are sufficient to establish that Martinez-Paramo’s prior

Pennsylvania conviction for terroristic threats is a COV under §

2L1.2. In doing so, the district court must determine whether, if

Martinez-Paramo pleaded guilty to § 2706(a)(1) (COV subsection),

the term “crime of violence” as used in that subsection satisfies

the COV definition in Guidelines § 2L1.2. Again, COV is not

defined in the Pennsylvania statute.

We well understand Martinez-Paramo’s objecting to the

Government’s being given a second chance to provide the requisite

documentary support for the claimed COV enhancement. As noted, we

have, however, remanded in similar situations. In Turner I, 305

F.3d at 351, an intervening change in law had repudiated the

district court’s basis for holding that the conviction at issue was

12

a COV under Guidelines § 4B1.2; we could not determine whether the

offense charged met the definition, because the charging document

was not in the record. Therefore, we remanded to the district

court to determine whether the count for which the defendant was

convicted met the enhancement’s requirements. Id. Similarly, in

United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999),

we remanded for the district court to include the state court

judgment against defendant in order to determine whether his

previous sentence was of the requisite length to qualify as an

“aggravated felony” under Guidelines § 2L1.2(b)(1)(A).

Moreover, at sentencing, the Government was at least somewhat

justified in believing that it did not need to expand the record

after the district court adopted the Government’s position that

Bovkun applied and therefore the entire terroristic threats statute

was a COV. Nevertheless, the Government should have already

obtained and introduced all of the relevant documents into the

record.

In the final analysis, remand is proper. This is especially

true given the ongoing development by our court of the application

of the COV definitions in the Guidelines. See, e.g., Calderon-

Pena, 362 F.3d 293 (2004 — granting rehearing en banc); Vargas-

Duran, 356 F.3d 398 (2004 — en banc); Charles, 301 F.3d 309 (2002

— en banc); United States v. Chapa-Garza, 262 F.3d 479 (5th Cir.

2001) (denial of rehearing en banc) (Barksdale, J., dissenting).

13

III.

For the foregoing reasons, Martinez-Paramo’s conviction is

AFFIRMED; his sentence is VACATED; and this matter is REMANDED for

resentencing consistent with this opinion.

AFFIRMED IN PART; VACATED IN PART; and REMANDED

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CARL E. STEWART, Circuit Judge, concurring in part, and dissenting

in part:

I agree with the majority that we should affirm the

conviction. I also agree that the appellate record in this case

does not allow us to clearly discern what paragraph of 18 PA. CONS.

STAT. § 2706 Martinez-Paramo was convicted under, and that § 2706

does not define crime of violence. I acknowledge that United

States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002) (“Turner I”),

and United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003)

(“Turner II”), allow remands in certain circumstances. I do not

agree that either Turner I or Turner II command that we do so

here. For the following reasons, I respectfully dissent from the

majority’s determination to remand the case for the Government to

take another bite at the sentencing apple.

On appeal, the Government strenuously argues that on remand it

should be allowed to buttress its claim that the crime of violence

sentence enhancement applies in this case. When the Government

initiated its prosecution of Martinez-Paramo, it decided to rely on

Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002), as the primary

basis for its sentence enhancement argument. Bovkun addressed a

different version of the terroristic threats statute than is at

issue here. It held that a crime of violence under 18 U.S.C. §

15

16(a) is defined as, “an offense that has as an element the use,

attempted use, or threatened use of physical force against the

person or property of another.” Under U.S.S.G. § 2L1.2, the

sentencing guideline at issue here, the force must be against a

person, while under § 16(a), it can also be against property.

Bovkun is clearly distinguishable and therefore it does not control

the outcome of this case. I agree with the majority here that the

district court erred in holding that Bovkun supported the

Government’s crime of violence sentence enhancement.

I depart from the majority, however, in concluding that a

remand for supplementation of the record is proper in this case.

Unlike the cases cited by the majority where we have remanded the

sentencing enhancement issue to the district court for additional

findings, there has been no intervening case law whatsoever between

the sentencing hearing and this appeal that would require remand as

a matter of law. Though Fifth Circuit case law regarding the

application of the crime of violence enhancement provisions remains

unsettled, the state of the case law had no bearing on the

Government’s litigation decisions. I would hold the Government to

the measure of proof it offered to the district court and the legal

theory it rested upon. I am not persuaded that remanding the case

for an unconditional supplementation of the record is warranted

here.

16

Significantly, the majority’s remand places no limits on how

large the Government’s additional bite at the sentencing apple may

be. The majority states “we remand to the district court for the

Government to supplement the record, if it can, with charging

documents, as well as others, which may establish to which elements

Martinez-Paramo pleaded guilty.”1 (Emphasis added.) Such an

unlimited invitation is unwarranted by the facts of this case.

Moreover, even if we take the Government at its word that the

indictment or other charging documents are available to the

district court upon remand, the sentencing inquiry does not end.

Further parsing of the statute and examination of the pertinent

cases in search of a match between the elements of the crime

Martinez-Paramo pled guilty to and the crime of violence statute

are inevitable. Another appeal of the district court’s ultimate

determination is equally probable. On this record, I would affirm

the conviction and hold that the Government failed to sustain its

burden of proof to show that Martinez-Paramo’s conviction under §

2706 qualifies as a crime of violence under U.S.S.G. § 2L1.2,

comment (B)(ii)(I). Because the district court committed

reversible error, I would vacate the sentence and remand for

1

See majority opinion at 12.

17

sentencing consistent with our findings. Accordingly, I concur in

part and dissent in part.

18