declining to overturn, on plain error review, a district court’s interpretation of U.S.S.G. § 2L1.2, and noting instead that “[a]n error cannot be plain if such error is not obvious or clear under current law.”
How later courts described this case
- declining to overturn, on plain error review, a district court’s interpretation of U.S.S.G. § 2L1.2, and noting instead that “[a]n error cannot be plain if such error is not obvious or clear under current law.”
- declining to decide the issue because conducting only plain error review
- “An error cannot be plain if such error is not obvious or clear under current law.”
Written by the judges who cited it.
The opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 27, 2003
No. 02-11932 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00764-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE HERNANDEZ-GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 27, 2003)
Before EDMONDSON, Chief Judge, BARKETT and COX, Circuit Judges.
BARKETT, Circuit Judge:
Jose Hernandez-Gonzalez appeals from the 70-month sentence imposed
pursuant to his plea of guilty to the charge of illegally reentering the United States
after having been deported, in violation of 8 U.S.C. § 1326(b)(2).
FACTS
In 1988, Hernandez-Gonzalez entered the United States illegally. In 1991,
he was arrested in North Carolina and convicted of attempted larceny, felonious
larceny, injury to real and personal property, and breaking and entering. He was
subsequently deported to Mexico. Hernandez-Gonzalez re-entered the United
States illegally in 1998. On January 21, 2000, Hernandez-Gonzalez was convicted
of two counts of obstruction of an officer.1 He was then deported, but again re-
entered the United States illegally in May 2000. On September 6, 2001,
Hernandez-Gonzalez was convicted for shoplifting. While he was serving his
sentence, he was located by INS agents and charged through a one-count
indictment with being found in the United States after being deported, in violation
of 8 U.S.C. § 1326(b)(2). Hernandez-Gonzalez pled guilty without a plea
agreement. The PSI assigned Hernandez-Gonzalez a base offense level of eight,
pursuant to U.S.S.G. § 2L1.2(a). The PSI recommended a 16-level increase
pursuant to § 2L1.2(b)(1)(A)(ii), as altered by Amendment 6322 because “the
1
He received a sentence of 2 years, of which he was to serve 90 days with
the balance probated.
2
“If the defendant was previously deported, or unlawfully remained in the
United States,” after being convicted of “a felony that is . . . a crime of violence . .
. increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1)(A).
2
defendant was previously deported . . . after a conviction for a felony that is . . . a
crime of violence.” According to the PSI, the predicate for this 16-level increase
was Hernandez-Gonzalez’ prior conviction for obstruction of an officer.3 Neither
Hernandez-Gonzalez nor the government filed any objections to the PSI.
At the sentencing hearing, Hernandez-Gonzalez stated that he did not have
any objections to the PSI, but requested a downward departure. Hernandez-
Gonzalez argued that he merited a downward departure because, while his offense
of obstructing an officer met the legal definition of a “crime of violence” under
2L1.2(b)(1)(A)(ii), the 16-level departure overstated the seriousness of his offense.
Hernandez-Gonzalez explained that during his January 2000 arrest, he had
reflexively reacted to the officers attempting to place handcuffs on his left hand,
where he had recently had surgery. He stated that, while the officer was cuffing
him, Hernandez-Gonzalez pulled his hand back in reaction to the pain, thereby
hitting the officer. Hernandez-Gonzalez argued that his action was not a serious
kind of obstruction, and that his offense merited a lesser enhancement.
3
The PSI also recommended a three-level downward adjustment for
acceptance of responsibility, resulting an a total offense level of 21. Hernandez-
Gonzalez’ criminal history category was V. This resulted in a guideline range of
70-87 months. The district judge sentenced Hernandez-Gonzalez to 70 months
incarceration.
3
The government objected to any consideration of a motion for downward
departure because it had only received notice of Hernandez-Gonzalez’ intent to
make such a motion a few minutes prior to the sentencing hearing. The
government stated that, if it had been given proper notice, it would have procured
the two officers involved in the obstruction charge to testify. The government
further argued that the guidelines clearly warranted the 16-level enhancement
under the circumstances.
The district court concluded that “based upon the description of the incident
in the presentence report, it is more serious than the simple reflex action of striking
the officer while resisting the handcuffing. And since the government did not have
the opportunity or notice in which to bring the officers present, I am going to deny
the motion . . . .” The district court then sentenced Hernandez-Gonzalez to 70
months imprisonment.
DISCUSSION
Because Hernandez-Gonzalez did not object to the applicability of U.S.S.G.
§ 2L1.2 to his sentence before the district court, we review the court’s 16-level
upward departure for plain error. United States v. Thayer, 204 F.3d 1352, 1358
(11th Cir. 2000). To satisfy the plain error standard, “a party must demonstrate: (i)
that there was error in the lower court’s action, (ii) that such error was plain, clear,
4
or obvious, and (iii) that the error affected substantial rights, i.e. that it was
prejudicial and not ‘harmless.’” United States v. Foree, 43 F.3d 1572, 1578 (11th
Cir. 1995).
For the purposes of U.S.S.G. § 2L1.2(b)(1)(A), the Guidelines define a
“crime of violence” as follows:
“Crime of Violence” –
(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.
Prior to Amendment 632,4 U.S.S.G. § 2L1.2 required a 16-level
enhancement if the defendant had previously been convicted “for an aggravated
felony.” The amendment changed the guideline by establishing “more graduated
sentencing enhancement of between 8 levels and 16 levels, depending on the
seriousness of the prior aggravated felony and the dangerousness of the
defendant.” U.S.S.G. Supp. to App. C, Amendment 632. The amendment was
adopted in response to
4
Amendment 632 was effective November 1, 2001. Hernandez-Gonzalez
was sentenced in March 2002, and there is no question that the amendment applies
to his sentence.
5
concerns . . . that § 2L1.2 (Unlawfully Entering or Remaining in the
United States) sometimes results in disproportionate penalties because
of the 16-level enhancement provided in the guideline for a prior
conviction for an aggravated felony. The disproportionate penalties
result because the breadth of the definition of “aggravated felony” . . .
means that a defendant who previously was convicted of murder, for
example, receives the same 16-level enhancement as a defendant
previously convicted of simple assault.
U.S.S.G. Supp. to App. C, Amendment 632.
The revised guideline provides a definition of “crime of violence” that
contains two subsections. Hernandez-Gonzalez contends that the plain language of
the statute requires an offense to meet both sections of the definition in order to
qualify for the 16-level enhancement, because the word “and” joins the two
subsections. He argues that had the Commission intended for an offense to qualify
as a crime of violence if it only met one of the subsections, it could have used the
word “or” to join the two sections. Hernandez-Gonzalez argues that his position is
further strengthened by the fact that it leads to the result sought by the Commission
– a decrease in disproportionality and a reduction in instances where a defendant
previously convicted of a less serious felony receives the same enhancement as a
defendant previously convicted of one of the more serious felonies, such as
murder.
Hernandez-Gonzalez concedes that his “obstructing an officer” conviction
meets part (1) of the definition of “crime of violence,” but asserts that it does not
6
meet part (2). He argues that because “obstructing an officer” is not listed in the
second part of the definition of “crime of violence,” the district court erroneously
concluded that his prior conviction justified the 16-level enhancement. He argues
that his conviction qualifies as an “aggravated felony” pursuant to U.S.S.G. §
2L1.2(b)(1)(C) and only merits an 8-level enhancement.
The government argues that the two subsections should be read as
alternative bases for finding a prior offense to be a crime of violence, rather than
providing a two-prong test. The first subsection, argues the government,
establishes the basic test for what constitutes a crime of violence, while the second
subsection is a non-exhaustive list of examples of the types of crimes intended to
be covered by the guideline. The government suggests that qualifying the list of
crimes in the second subsection with the word “including” means it is not a
complete list of all crimes encompassed in the definition, but rather a mechanism
for ensuring that those crimes listed will be considered crimes of violence. It notes
that “the term 'including' is not one of all-embracing definition, but connotes
simply an illustrative application of the general principle.” Federal Land Bank of
St. Paul v. Bismark Lumber Co., 314 U.S. 95, 100 (1941). The government
7
dismisses the use of “and” instead of “or” to separate the two subsections as a
drafting mistake on the Commission’s part.5
In this case, we need not decide whether Hernandez-Gonzalez’ interpretation
of U.S.S.G. § 2L1.2 or the government’s interpretation is the correct one.
Hernandez-Gonzalez cannot prevail because the district court did not commit plain
error in applying the guideline to his sentence. First, Hernandez-Gonzalez
conceded at sentencing that his conviction for obstructing an officer met the
definition of a crime of violence qualifying for a 16-level departure. Second, as the
arguments of the parties demonstrate, because the guideline is ambiguous and lacks
judicial interpretation on this point, even if it was erroneously applied, the error
could not have been plain. An error cannot be plain if such error is not obvious or
clear under current law. United States v. Humphrey, 164 F.3d 585, 588 (11th Cir.
1999). For the foregoing reasons, the defendant’s sentence is
AFFIRMED.
5
After the government filed its brief, the Eighth Circuit issued an opinion
supporting the government’s reading of the language in the inverse situation. See
United States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir. 2002) (holding
that a felony enumerated in subpart (II) is always a crime of violence for purposes
of § 2L1.2(b)(1)(A)(ii)), cert. denied, --- S.Ct. ---, 2003 WL 99711 (Jan. 13, 2003)
.
8