Case: 09-40498 Document: 00511135111 Page: 1 Date Filed: 06/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2010
No. 09-40498
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GERMAN ANDINO-ORTEGA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Appellant German Andino-Ortega appeals his 60-month sentence. For the
reasons set forth herein, we VACATE Andino-Ortega’s sentence and REMAND
for resentencing.
I
Andino-Ortega pleaded guilty to one count of being unlawfully present in
the United States following deportation, in violation of 8 U.S.C. § 1326. Under
the Guidelines applicable to this case, the presentence report (“PSR”)
recommended a base offense level of eight. See U.S.S.G. § 2L1.2(a). The PSR
also recommended a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii), after
concluding that Andino-Ortega’s prior Texas conviction for injury to a child,
under T EX. P ENAL C ODE A NN. § 22.04(a), qualified as a crime of violence. The
Case: 09-40498 Document: 00511135111 Page: 2 Date Filed: 06/08/2010
No. 09-40498
PSR included a two-level reduction for acceptance of responsibility, but indicated
that the Government did not plan to pursue an additional one-point reduction
pursuant to U.S.S.G. § 3E1.1(b). Andino-Ortega’s resulting offense level of 22,
combined with a criminal history category of III, resulted in a Guidelines range
of 51–63 months imprisonment.
Andino-Ortega requested a downward variance on the basis that he
originally believed that his prior conviction would result in a four-level
enhancement under case law finding that injury to a child by omission does not
constitute a crime of violence. However, Andino-Ortega admitted that his prior
conviction was for “intentionally and knowingly causing bodily injury to [a child]
by striking her with a weedeater,” which is not an injury caused by omission.
The Government requested a within-Guidelines sentence, noting that Andino-
Ortega had a history of family violence and returned to the United States shortly
after his prior deportation.
Andino-Ortega also argued that he was entitled to an additional one-point
reduction under § 3E1.1(b) simply for entering a timely guilty plea. However,
the Government refused to move for the reduction because Andino-Ortega would
not waive his appellate rights. At sentencing, the district court overruled
Andino-Ortega’s objection, finding that the Government had authority under
this circuit’s precedent to refuse to move for the additional reduction. The
district court declined to grant a downward variance.
The district court considered all the arguments of counsel and concluded
that a within-Guidelines sentence would satisfy the § 3553(a) factors. The court
sentenced Andino-Ortega to 60 months in prison, to be followed by a three-year
term of supervised release.
II
At the outset, we must address the Government’s argument that Andino-
Ortega waived the right to appeal his sentence because he specifically addressed
the 16-level enhancement under § 2L1.2(b)(1)(A)(ii) and conceded that it was
2
Case: 09-40498 Document: 00511135111 Page: 3 Date Filed: 06/08/2010
No. 09-40498
proper under his understanding of the case law. In particular, the Government
points to the following statements by defense counsel:
The predicate offense in this case was injury to a child. . . . There
is case law that says that injury to a child by omission is not a crime
of violence and would only garner a 4-level enhancement.
However, there is case law—[p]articularly, I’m looking here at
Perez-Munoz v. Keisler, 507 F.3d 357 [5th Cir. 2007], which finds
that if there—the injury to a child stems from an intentional act,
then it definitely is a crime of violence. Your Honor, . . . my client’s
position throughout has been that [the injury] was the result of an
accident.
Now, the fact remains that he pled to the offense as charged in the
indictment which charged an intentional offense. . . .
Based on this colloquy, the Government contends that Andino-Ortega “knew of
the sentencing guidelines issue and that he consciously chose to forego it.”
Andino-Ortega contends that the statements, in fact, show that defense counsel
misunderstood Perez-Munoz and failed to account for precedent indicating that
the Texas offense of injury to a child is not a “crime of violence.”
Waiver is the intentional relinquishment of a known right. United States
v. Olano, 507 U.S. 725, 733 (1993). A waiver “occurs by an affirmative choice by
the defendant to forego any remedy available to him, presumably for real or
perceived benefits resulting from the waiver.” United States v. Dodson, 288 F.3d
153, 160 (5th Cir. 2002). In contrast, forfeiture is the failure to make the timely
assertion of a right. Olano, 507 U.S. at 733.
We have found only one case in this circuit that suggests that counsel’s
statements, here, might constitute a waiver. See United States v.
Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). In Fernandez-Cusco, the
court sua sponte considered whether the defendant waived his appeal of the
application of a 16-level enhancement for his prior conviction on the basis that
the prior crime was not a “crime of violence.” Id. The court acknowledged that
3
Case: 09-40498 Document: 00511135111 Page: 4 Date Filed: 06/08/2010
No. 09-40498
a “defendant does not waive plain-error review simply by ‘fail[ing] to object to
the characterization of his prior offense as a crime of violence.’” Id. (quoting
United States v. Alfaro, 408 F.3d 204, 207 n.1 (5th Cir.), cert. denied, 546 U.S.
911 (2005)) (alteration in original). But it found that the defendant “did more
than fail to object . . .; he affirmatively recognized [the enhancement] was being
applied and indicated it was proper.” Id. The court concluded that these
statements did not rise to the level of waiver, but “arguably” constituted invited
error. In an abundance of caution, the court nonetheless reviewed for plain
error. Id.
Although we recognize the factual similarity here—Andino-Ortega’s
counsel acknowledged that the 16-level enhancement was proper—he did so on
the basis of a misunderstanding of this court’s precedent. The statements
regarding the propriety of the crime-of-violence enhancement do not constitute
a waiver because they do not evidence an intentional and knowing
relinquishment of a right. Counsel’s failure to object below because he did not
recognize the argument now being made on appeal is not a waiver. See United
States v. Castaneda-Baltazar, 239 F. App’x 900, 901 (5th Cir. 2007)
(unpublished); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.
2006) (finding no waiver of sentencing guidelines issue even though defense
counsel stated that “other than the Blakely objection, he had no problem with
the PSR”). Accordingly, we review for plain error.
III
Following United States v. Booker, 543 U.S. 220 (2005), this court reviews
sentences for reasonableness in light of the factors in 18 U.S.C. § 3553(a).
United States v. Mares, 402 F.3d 511, 519–20 (5th Cir. 2005). Pursuant to Gall
v. United States, 552 U.S. 38, 51 (2007), the court determines whether the
sentence is procedurally sound and whether it is substantively reasonable. This
court reviews a district court’s interpretation of the guidelines de novo and its
factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
4
Case: 09-40498 Document: 00511135111 Page: 5 Date Filed: 06/08/2010
No. 09-40498
751, 764 (5th Cir. 2008). Because Andino-Ortega did not object below, he must
establish that the district court plainly erred in applying the guidelines.
Arviso-Mata, 442 F.3d at 384. Under plain error, the appellant must show an
error, that is clear or obvious, and that affected his substantial rights. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United States v. Villegas,
404 F.3d 355, 358 (5th Cir. 2005). If these requirements are met, this court may
remedy the error if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Puckett, 129 S. Ct. at 1429 (quotation
omitted) (alteration in original).
A
The Guidelines provide for a 16-level increase in a defendant’s base offense
level if he was previously deported after being convicted of a crime of violence.
U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime of violence” is defined as either one of a
list of enumerated crimes or “any other 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.” § 2L1.2, comment. (n.1(B)(iii)) (emphasis
added). The crime of “injury to a child,” for which Andino-Ortega was previously
convicted, is not one of the enumerated crimes. Thus, to qualify for the 16-level
enhancement, the statute of conviction must have “as an element the use,
attempted use, or threatened use of physical force.” Texas Penal Code § 22.04(a)
provides that: “A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally, knowingly, or
recklessly by omission, causes to a child . . . serious bodily injury; serious mental
deficiency, impairment, or injury; or bodily injury.”
In determining whether an offense is a crime of violence, this court “looks
to the elements of the crime, not to the defendant’s actual conduct in committing
it.” United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc).
The elements come from the statute of conviction, not from the “particular
manner and means that attend a given violation of the statute.” Id. However,
5
Case: 09-40498 Document: 00511135111 Page: 6 Date Filed: 06/08/2010
No. 09-40498
where, as here, a statute lists alternative methods of committing a crime, a court
may look to charging papers to see which of the various statutory alternatives
were involved in a particular case. Id. at 258; see also Perez-Munoz, 507 F.3d at
362 (holding that T EX . P ENAL C ODE A NN. § 22.04(a) may be “pared down” by
reference to charging documents because a defendant can be convicted either for
an intentional act or an omission). Notwithstanding Andino-Ortega’s protests
that he “accidentally” caused injury to a child, it is clear that he was convicted
of causing injury by an act, rather than an omission. Specifically, Andino-Ortega
pleaded guilty to the charge that he “did . . . intentionally and knowingly cause
bodily injury to . . . a child younger than 15 years of age, by striking her with a
weedeater.”1
The question is whether a conviction for causing injury to a child by an act,
rather than omission, constitutes a “crime of violence” for purposes of § 2L1.2(b).
Andino-Ortega argues that the district court incorrectly relied on Perez-Munoz
in applying the sentencing enhancement, while the Government argues that
Perez-Munoz is on point and controlling. In Perez-Munoz, the court found that
if the charging documents demonstrated that the offense was committed by an
intentional act rather than by omission, the “injury to a child” offense may
qualify as a “crime of violence.” 507 F.3d at 362. Although Perez-Munoz deals
with the underlying statute of conviction at issue here, it interprets whether that
offense is a “crime of violence” under 18 U.S.C. § 16(b), which defines “crime of
violence” differently than § 2L1.2(b). Under § 16(b), an offense that involves a
“substantial risk that physical force against the person or property of another
may be used” constitutes a crime of violence, while under § 2L1.2, the offense
must “[have] as an element the use, attempted use, or threatened use of physical
1
Although the actual conduct described involved the use of physical force, that is
irrelevant for the purposes of this case. The inquiry is whether the use of physical force is an
element under the statute of conviction, not whether the defendant’s actual conduct involved
the use of physical force. See, e.g., Calderon-Pena, 383 F.3d at 257.
6
Case: 09-40498 Document: 00511135111 Page: 7 Date Filed: 06/08/2010
No. 09-40498
force.” Because of the difference in the definition of “crime of violence,”
Perez-Munoz is clearly not controlling.
Instead, Andino-Ortega contends that United States v. Gracia-Cantu, 302
F.3d 308 (5th Cir. 2002), is controlling because in that case, the definition of
“crime of violence” matches the definition at issue here. The court determined
that “injury to a child” under T EX. P ENAL C ODE A NN. § 22.04(a) was not a crime
of violence under 18 U.S.C. § 16(a), which provides a substantially similar
definition to that set forth in U.S.S.G. § 2L1.2. Id. at 311–12. The court
accepted the argument that “injury to a child” did not constitute a crime of
violence because § 22.04(a) does not require that the perpetrator actually use,
attempt to use, or threaten to use physical force. Id. at 311. However, the court
so held because it could not determine whether the “injury to a child” occurred
by act or omission. Because such injury could occur by omission, the offense was
“not, ‘by its nature,’ a crime of violence.” Id. at 313 (citing United States v.
Velazquez-Overa, 100 F.3d 418, 420–21 (5th Cir. 1996)). Here, it is clear that
Andino-Ortega was convicted of causing injury by an intentional act, not an
omission. Thus, Gracia-Cantu is not dispositive.
Although the parties largely ignored this court’s decision in United States
v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc), it is dispositive. In
that case, a panel of this court found that the offense of child endangerment
under T EX. P ENAL C ODE. A NN . § 22.041(c) constituted a crime of violence for
purposes of applying the sentencing enhancement under U.S.S.G. § 2L1.2. See
United States v. Calderon-Pena, 339 F.3d 320, 329 (5th Cir. 2003).2 The en banc
2
The offense of child endangerment, under TEX . PENAL CODE ANN . § 22.041(c), is
slightly different than injury to a child, under § 22.04(a). Under § 22.041(c), a person commits
the offense of child endangerment if he “intentionally, knowingly, recklessly, or with criminal
negligence, by act or omission, engages in conduct that places a child . . . in imminent danger
of death, bodily injury, or physical or mental impairment.” The court characterized the
difference thus: The “salient difference between § 22.04(a) and § 22.041(c) is that in the latter,
the perpetrator places a child ‘in imminent danger’ of injury, death, etc., whereas in § 22.04(a)
the conduct actually results in the injury, death, etc., of the child.” Calderon-Pena, 339 F.3d
7
Case: 09-40498 Document: 00511135111 Page: 8 Date Filed: 06/08/2010
No. 09-40498
court reversed. It found that although Calderon-Pena had previously committed
the offense of “knowingly . . . by act . . . engag[ing] in conduct that places a child
younger than 15 years in imminent danger of ... bodily injury,” the “ statute does
not have the use, attempted use, or threatened use of physical force against the
victim’s person as a required element.” Calderon-Pena, 383 F.3d at 260
(alteration in original).
This court previously decided that the phrase “has as an element” in
§ 2L1.2 means that “the intentional use of force must be a constituent part of a
claim that must be proved for the claim to succeed.” United States v.
Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (internal quotation
marks omitted). “If any set of facts would support a conviction without proof of
that component, then the component most decidedly is not an element—implicit
or explicit—of the crime.” Id. For instance, an offense under § 22.04 can be
committed by intentional act without the use of physical force by putting poison
or another harmful substance in a child’s food or drink. See Perez-Munoz, 507
F.3d at 362. Because the offense of injury to a child, even where committed by
an intentional act, does not require the use or attempted use of physical force,
the offense does not meet the definition of a “crime of violence” necessary for
imposition of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This
conclusion follows clearly from the court’s analysis in Calderon-Pena and
Vargas-Duran, and accordingly, the district court’s error was clear or obvious.
The district court’s error in applying the 16-level enhancement affected
Andino-Ortega’s substantial rights. As a result of the enhancement, the
sentencing range was 51 to 63 months. Andino-Ortega received a sentence of 60
months’ imprisonment. If, as Andino-Ortega contends, he is subject to only a 4-
level enhancement pursuant to § 2L1.2(b)(1)(D), the applicable Guidelines range
at 327.
8
Case: 09-40498 Document: 00511135111 Page: 9 Date Filed: 06/08/2010
No. 09-40498
is 10 to 16 months, a range four to five times lower than his sentence. And even
if the Government is correct that Andino-Ortega is properly subject to an 8-level
enhancement under § 2L1.2(b)(1)(C), the Guidelines range would still only be 21
to 27 months, a range substantially lower than the sentence Andino-Ortega
received.3 Because these ranges, however calculated, do not overlap with the
range applied to Andino-Ortega, the district court’s error necessarily increased
his sentence and thus affected his substantial rights. See, e.g., Villegas, 404 F.3d
at 364.
We find that Andino-Ortega has satisfied his burden under the plain-error
test by showing that the district court misapplied the Guidelines in calculating
the sentencing range, the court imposed a sentence based on that miscalculation,
and the sentence was higher than the correct range under the Guidelines. See
id. Furthermore, because the district court’s error clearly affected Andino-
Ortega’s sentence, we also find that the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.4 See id. Accordingly, we
vacate his sentence and remand for resentencing.
B
The second issue that Andino-Ortega raises is that the district court
abused its discretion in refusing his request for a one-level reduction for
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b). This reduction is
3
We leave to the district court on remand to properly calculate the guidelines range.
We note, however, that Andino-Ortega can be subject to an 8-level enhancement under
§ 2L1.2(b)(1)(C), only if his prior conviction for injury to a child qualifies as an “aggravated
felony,” as defined by 8 U.S.C. § 1101(a)(43) and 18 U.S.C. § 16(b). See U.S.S.G. § 2L1.2,
comment. (n.3(A)).
4
We find the Government’s argument that the district court imposed an alternate non-
Guidelines sentence wholly unpersuasive. The Government urges that any error was harmless
because the error did not affect the district court’s selection of the sentence imposed. See
United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Specifically, the Government
contends that the district court implicitly considered the lower sentencing range argued by
Andino-Ortega, but made clear that it nonetheless would have imposed the same sentence
even if the lower range applied. See United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.
2008). We find no support for this contention in the record.
9
Case: 09-40498 Document: 00511135111 Page: 10 Date Filed: 06/08/2010
No. 09-40498
only applicable if the defendant qualifies for the two-point reduction under
§ 3E1.1(a) and “the offense level determined prior to the operation of subsection
(a) is level 16 or greater.” § 3E1.1(b). Whether Andino-Ortega is even eligible
for the additional reduction will depend on the calculation of his base offense
level. If, as discussed above, he is subject to only a 4-level enhancement
pursuant to § 2L1.2(b)(1)(D), then his base offense level will be less than 16 and
this issue will be moot. On the other hand, if the Government is correct that an
8-level enhancement applies under § 2L1.2(b)(1)(C), then Andino-Ortega’s base
offense level will be 16. For prudential reasons, we decline to pass on this
question before the district court calculates the applicable Guidelines range and
resentences Andino-Ortega. At that time, Andino-Ortega will be free to re-urge
his arguments regarding § 3E1.1(b), if that provision is applicable.
IV
For the foregoing reasons, we VACATE Andino-Ortega’s sentence and
REMAND for resentencing consistent with this opinion.
10