Opinion
No. EP-06-CR-1334-PRM.
October 16, 2006
On this day, the Court considered Defendant Agustin Rodriguez-Sandoval ("Defendant") and the Government's objections to the Presentence Investigation Report's recommendation of an eight-level upward adjustment for Defendant's prior conviction of child abuse in California. The Presentence Investigation Report characterizes Defendant's conviction an "aggravated felony," thus qualifying Defendant for an eight-level increase pursuant to section 2L1.2(b)(1)(C) of the Sentencing Guidelines Manual. Defendant's objection argues that the conviction is not an "aggravated felony," and that he should therefore receive only a four-level increase pursuant to section 2L1.2(b)(1)(D) for the conviction of "any other felony." The Government argues that Defendant's prior conviction is actually a "crime of violence," and thus warrants a sixteen-level increase pursuant to section 2L1.2(b)(1)(A). The Court has considered the parties' briefing and oral arguments presented to the Court at the sentencing hearing on October 4, 2006. After due consideration, the Court is of the opinion that Defendant's objection should be granted and the Government's objection denied for the reasons set forth below.
It is well established that Defendant will receive a sixteen-level increase under section 2L1.2(b)(1)(A) of the Sentencing Guidelines Manual if his prior conviction is for a "crime of violence." The Sentencing Guidelines Manual defines "crime of violence" as, in pertinent part, "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. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n. 1(B)(iii).
If the sixteen-level increase is not warranted, Defendant may instead receive an eight-level increase under section 2L1.2(b)(1)(C) if his conviction is for an "aggravated felony." The Sentencing Guidelines Manual defines "aggravated felony" by reference to 8 U.S.C. § 1101(a)(43). Pursuant to that section, "aggravated felony" includes "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43). Accordingly, a "crime of violence" for purposes of an eight-level increase is:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
8 U.S.C. § 16.
Thus, for purposes of both Defendant and the Government's objections, the Court must determine whether Defendant's conviction was for an offense that involved the use of physical force, either as a necessary element of the offense or by presenting a substantial risk that physical force would be used in the commission of the offense.
Defendant was convicted on May 7, 2006, for child abuse pursuant to California state law. CAL. PENAL CODE § 273a(a). As the Government concedes, that statute does not expressly require the use of force as an element of the crime, and the offense does not, "by its nature, involve a substantial risk that physical force" will be used. See 8 U.S.C. § 16. The statute criminalizes certain omissions, and it is easy to imagine examples of conduct that would violate the statute but not involve physical force. See id. ("willfully causes or permits any child to suffer . . . unjustifiable . . . mental suffering"). However, the California felony complaint in Defendant's case shows that he was also charged under California Penal Code § 12022.7(a) with a statutory enhancement of having "personally inflicted great bodily injury" during the commission of the offense. The Government argues that this constitutes an element of the "offense" for which Defendant was convicted, and that accordingly he was convicted of a "crime of violence," or, alternatively, an "aggravated felony." Defendant argues that there is no reliable evidence that his conviction actually involved the proof of the § 12022.7(a) enhancement, and that without this enhancement the conviction cannot be seen to necessarily include the use of force. Whether the paragraph of the complaint charging Defendant with having "personally inflicted great bodily injury" is properly called an "enhancement" or an "element" of Defendant's offense, the issue before the Court is whether there is sufficiently reliable evidence that Defendant's conviction under § 273a(a) included proof of the infliction of physical force, as charged in the complaint pursuant to § 12022.7(a).
In determining whether the conviction constitutes a "crime of violence," the Court is required to apply a categorical approach, focusing on the definition of the offense under state law rather than the specific facts of a defendant's conviction. United States v. Gracia-Cantu, 302 F.3d 308, 312 (5th Cir. 2002). However, this approach does not require the Court to stop with a reading of the statute itself. Instead, a court may consider such additional information as the "charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2003) (quoting Shepard v. United States, 544 U.S. 13 (2005)). This ensures that a court only considers elements of the conviction that were necessarily admitted by a defendant or proven to a jury. Since the infliction of physical force was expressly charged in the felony complaint, the Court finds it appropriate to consider this evidence under the categorical approach. Whether there is sufficiently reliable evidence that this component of the complaint was actually proven as part of Defendant's conviction will be discussed infra.
The evidence before the Court of Defendant's conviction consists of the felony complaint, which charges a violation of § 273a(a) and a statutory enhancement for the use of force pursuant to § 12022.7(a); and an abstract of judgment. The abstract indicates that Defendant pleaded guilty, and was sentenced to two years imprisonment. This sentence is within the range allowed by § 273a(a), as a violation of that statute "shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years." CAL. PENAL CODE § 273a(a). (The abstract indicates that Defendant was committed to state prison.) Notably, Defendant's entire sentence is shorter than the three-year increase imposed upon a defendant who is convicted of the § 12022.7(a) enhancement. Id. § 12022.7(a). Furthermore, the abstract also contains a space to list "enhancements charged and found true tied to specific counts (mainly in the § 12022-series)," and the California court made no entries in this box, despite the complaint having charged Defendant with the use of force under § 12022.7(a). This strongly suggests that Defendant was not convicted of having inflicted physical force pursuant to § 12022.7(a).
The Government contends § 12022.7(a), as effective at the time of Defendant's conviction, provided that the use of force as part of an offense shall result in an additional three-years imprisonment except when the use of force is already an element of the underlying offense. Therefore, the Government argues, the underlying offense of child abuse could have included the use of force as an element, and thus no "enhancement" would be listed on the abstract and Defendant's sentence would not include the three-year increase.
The Court recognizes the plausibility of such circumstances. However, the Court finds it more likely that the infliction of physical force under § 12022.7(a) was not part of Defendant's conviction. Nothing in the abstract suggests that the conviction was for anything more than the base offense of child abuse under § 273a(a). Defendant's sentence was within the range allowed by § 273a(a), and the space for "enhancements" is left blank. Nothing beyond the complaint suggests the use of physical force as part of Defendant's conviction.
The Government further argues that the § 12022.7(a) enhancement must have been a proven component of Defendant's conviction because of California's prohibition on plea bargaining in cases like Defendant's. The complaint states that the infliction of physical force makes the charged offense a "serious felony" for purposes of California Penal Code § 1192.7(c)(8). That section provides that plea bargaining is prohibited in cases where a defendant is charged with a "serious felony," see CAL. PENAL CODE § 1192.7(c)(8), and the Government argues that therefore Defendant could not have pled guilty to the charged offense without also pleading guilty to the charged infliction of physical force. While § 1192.7(a)(2) does bar plea bargaining in most such circumstances, it allows a prosecutor to drop the § 12022.7(a) enhancement when "there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." Id. § 1192.7(a)(2). Again, the abstract of judgment makes no reference to the allegation under § 12022.7(a), and also does not raise the issue of § 1192.7(c)(8). Given the significant exceptions to the prohibition on plea bargaining, the Court cannot conclude that Defendant's conviction necessarily included the infliction of physical force.
The Court thus finds that it has been presented with no sufficiently reliable evidence that Defendant's conviction included the infliction of physical force under § 12022.7(a). Therefore, Defendant's prior conviction may not properly be considered an "aggravated felony" or "crime of violence." Defendant is thus ineligible for the sixteen- and eight-level increases under sections 2L1.2(b)(1)(A) and 2L1.2(b)(1)(C) of the Sentencing Guidelines Manual. Since his prior conviction is for a felony, though, a four-level increase pursuant to section 2L1.2(b)(1)(E) is appropriate.
Accordingly, IT IS ORDERED that Defendant Agustin Rodrgieuz-Sandoval's Objection is GRANTED. IT IS FURTHER ORDERED that the Government's Objection is DENIED.