F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 6, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-2157
JO RG E HER NA N D EZ-C ASTILLO,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . 04-CR-02210)
James P. Baiamonte, A lbuquerque, New M exico for D efendant-Appellant.
Norman Cairns, Assistant United States Attorney, (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New M exico for Plaintiff-
Appellee.
Before O’BRIEN, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.
M cCO NNELL, Circuit Judge.
Jorge Hernandez-Castillo pleaded guilty to illegally reentering the United
States in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). At sentencing,
the district court enhanced M r. Hernandez-Castillo’s base offense level by 16
points, finding that a prior California conviction for engaging in sexual
intercourse w ith a minor was a felony and a crime of violence. On appeal, M r.
Hernandez-Castillo challenges only the district court’s application of an
enhancement for a crime of violence. Because we find that the prior California
conviction was a felony and a crime of violence, we AFFIRM the district court’s
decision.
I. Background
M r. Hernandez-Castillo is a M exican national who lived in the United
States as a teenager. W hen he was eighteen years old, M r. Hernandez-Castillo
was involved in a consensual sexual relationship with Ana M ejia, a fourteen-year
old girl. The two had a child, Brenda, who was born on January 8, 1998. M r.
Hernandez-Castillo has remained in contact with Brenda since 1998 and continues
to help support her. Because of the four-year age difference between M r.
Hernandez-Castillo and M s. M ejia, he was charged with several violations of the
California Penal Code. He pleaded guilty to having unlawful sexual intercourse
with a minor more than three years younger than himself, in violation of
California Penal Code § 261.5(c). The California court sentenced M r. Hernandez-
Castillo to a suspended sentence of 157 days in county jail, which amounted to
time served, and placed him on formal probation for four years.
On July 3, 1998, after his California conviction, M r. Hernandez-Castillo
was deported from the United States to M exico. On July 18, 2004, he reentered
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the United States and was apprehended at a border patrol checkpoint north of Las
Cruces, New M exico. M r. Hernandez-Castillo admitted to border patrol agents
that he was a citizen of M exico and that he had illegally entered the United
States. He subsequently pleaded guilty to illegal reentry.
The Presentence Report (“PSR”) provided that M r. Hernandez-Castillo’s
base offense level was 8, pursuant to § 2L1.2(a) of the United States Sentencing
Guidelines. The PSR recommended that M r. Hernandez-Castillo’s base offense
level be increased by 16 levels, pursuant to § 2L1.2(b)(1)(A)(ii), because his prior
California conviction for unlawful sexual intercourse with a minor was a felony
and a crime of violence. After a 3-level downward departure for acceptance of
responsibility, the PSR provided for an adjusted offense level of 21, a criminal
history category of IV, and a recommended guidelines range of 57 to 71 months.
At sentencing, the district court adopted the recommendations contained in the
PSR and sentenced M r. Hernandez-Castillo to the low end of the range, 57
months, concluding that such a sentence was reasonable based on the factors set
forth in 18 U.S.C. § 3553(a). M r. Hernandez-Castillo filed a timely appeal,
claiming that the district court erred in applying the sixteen-level upward
adjustment because his previous California conviction was a misdemeanor, not a
felony, and was not a crime of violence.
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II. Discussion
After United States v. Booker, 543 U.S. 220 (2005), rendered the
Sentencing Guidelines advisory, district courts must use a two-step process at
sentencing. In Step 1, the district court must consult the Guidelines and apply
any applicable upward adjustments and downward departures. Through that
process, the district court establishes a total offense level and corresponding
sentencing range under the Guidelines. In Step 2, the district court may use its
discretion to impose a sentence within the Guidelines range or to vary either
upward or downward from that range.
In evaluating sentences imposed under the now-advisory Guidelines, we
likewise employ a two-step approach. United States v. Kristl, 437 F.3d 1050,
1055 (10th Cir. 2006) (per curiam). First, we consider whether the district court
properly applied the Guidelines at Step 1, reviewing its legal determinations de
novo and its factual findings for clear error. Id. Only if we conclude that the
district court correctly applied the Guidelines or that any errors were harmless, do
we consider whether the ultimate sentence imposed in Step 2 was reasonable,
applying a presumption of reasonableness to sentences falling within the
Guidelines range. Id.
M r. Hernandez-Castillo does not challenge the reasonableness of the
sentence imposed by the district court. Instead, he argues that the district court
comm itted legal error at Step 1 by applying the sixteen-level upward adjustment
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based on his prior California conviction because his conviction was a
misdemeanor, not a felony, and because the sexual relationship was consensual
and did not involve the use of force.
The sixteen-level upward adjustment for crimes of violence applies to
defendants who were previously deported after “a conviction for a felony that is .
. . (ii) a crime of violence.” U .S.S.G. § 2L1.2(b)(1)(A ). These are terms of art;
we must follow the definitions specified by the guidelines and guidelines
comm entary, rather than the ordinary sense of the terms. A “felony” is defined as
“any federal, state, or local offense punishable by imprisonment for a term
exceeding one year.” Id. at n.2. The crime for which M r. Hernandez-Castillo was
convicted, sexual intercourse with a minor, is referred to as a “wobbler” because
it is punishable either as a felony or a misdemeanor:
Any person w ho engages in an act of unlawful sexual intercourse
with a minor who is more than three years younger than the
perpetrator is guilty of either a misdemeanor or a felony, and shall be
punished by imprisonment in a county jail not exceeding one year, or
by imprisonment in the state prison.
Cal. Penal Code §§ 261.5(c). Under the California Penal Code, an unspecified
prison term in state prison may be for 16 months or two or three years. Id. § 18.
A wobbler charged as a felony is treated as a felony for all purposes until
judgment. United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992). A
wobbler is converted to a misdemeanor:
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(1) After a judgment imposing a punishment other than imprisonment
in the state prison.
* * *
(3) W hen the court grants probation to a defendant without
imposition of sentence and at the time of granting probation, or on
application of the defendant or probation officer thereafter, the court
declares the offense to be a misdemeanor.
Cal. Penal Code § 17(b). Although M r. Hernandez-Castillo received four years’
probation and a suspended sentence of 157 days in county jail, his situation does
not fall under either of those circumstances.
M r. Hernandez-Castillo’s conviction could have been converted to a
misdemeanor under § 17(b)(1) only if a judgment imposed a punishment other
than imprisonment in state prison. Both parties agree that M r. Hernandez-Castillo
received a sentence other than imprisonment in state prison. Indeed, he received
probation and a suspended sentence of imprisonment in county jail. However,
neither probation nor a suspended sentence is deemed to be a judgment imposing
punishment under California law. Robinson, 967 F.2d at 293; United States v.
Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir. 2002); People v. Smith, 16 Cal.
Rptr. 12, 13 (Cal. Ct. App. 1961) (“An order granting probation is not a
judgment.”); People v. Arguello, 381 P.2d 5, 6 (Cal. 1963) (“In granting probation
after a conviction, the trial court may suspend the imposition of sentence, in
which case no judgment of conviction is rendered.”). Accordingly, there was no
judgment converting M r. Hernandez-Castillo’s conviction to a misdemeanor under
§ 17(b)(1).
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Nor was M r. Hernandez-Castillo’s conviction converted to a misdemeanor
under § 17(b)(3). Although § 17(b)(3) applies to grants of probation and
suspended sentences, it operates to convert a wobbler into a misdemeanor only
when “the court declares the offense to be a misdemeanor.” Cal. Penal Code §
17(b)(3). M r. Hernandez-Castillo has presented no evidence that the sentencing
court declared his offense to be a misdemeanor. Indeed, there is some evidence
that his offense was treated as a felony. Because his conviction under § 261.5(c)
was a felony punishable by up to three years imprisonment, see id. § 18, the
district court did not err in classifying M r. Hernandez-Castillo’s C alifornia
conviction as a felony.
W e next turn to M r. Hernandez-Castillo’s argument that his prior
conviction was not a crime of violence because his relationship with M s. M ejia
was consensual. The application notes to § 2L1.2(b)(1) define “crime of
violence” as:
any of the following: murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual abuse of a minor,
robbery, arson, 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 n.1(B)(iii). The offenses listed in the application note to §
2L1.2 “are always classified as ‘crimes of violence,’ regardless of whether the
prior offense expressly has as an element the use, attempted use, or threatened use
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of physical force against the person of another.” United States v. M unguia-
Sanchez, 365 F.3d 877, 881 (10th Cir. 2004) (emphasis and internal quotation
marks omitted). Section 261.5 is California’s statutory rape law. See M ichael M .
v. Superior Court of Sonoma County, 450 U.S. 464, 466 (1981); People v.
Osband, 919 P.2d 640, 734 (Cal. 1996) (“‘Statutory rape’ is commonly
understood to be the offense of unlawful sexual intercourse w ith a minor (§
261.5).”). Because § 261.5 is a statutory rape statute and statutory rape is listed
in the application note, M r. Hernandez-Castillo’s conviction was for a crime of
violence irrespective of whether his relationship with M s. M ejia w as consensual.
III. Conclusion
Accordingly, the district court did not err in Step 1 by classifying M r.
Hernandez-Castillo’s prior California conviction as both a felony and crime of
violence. At sentencing, M r. Hernandez-Castillo’s counsel did not challenge the
reasonableness of the resulting sentence, and he does not do so here. W e
therefore affirm the sentence imposed by the district court.
W e feel compelled to comment, however, that we have grave misgivings
regarding the appropriateness of this 57-month sentence. The sentence results
from a sixteen-level enhancement on account of a consensual sexual relationship
M r. Hernandez-Castillo had with a younger girl many years ago, with parental
consent, when both w ere teenagers. M r. Hernandez-Castillo continues to support
and maintain contact with the child, who is now six years old, and also
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(apparently) maintains contact with the mother. Under the Sentencing Guidelines,
this prior act, a statutory rape, is classified as a violent felony, leading to a 16-
point enhancement, which translates into about four additional years in federal
prison. In reality M r. Hernandez-Castillo committed no violence and he was
punished at the level of a misdemeanor.
The Sentencing Guidelines produce this result by looking to possible
punishment rather than actual punishment and by defining all statutory rape as
violent regardless of the circumstances. Then there is the added complication of
determining whether a California “wobbler” is a felony or a misdemeanor. A
“wobbler” is an offense that may be either a felony or a misdemeanor, but is
assumed to be a felony unless, among other things, the state court issues a
“judgment” sentencing the defendant to something less than a year in state prison
or otherwise explicitly classifies the offense as a misdemeanor. Unfortunately for
M r. Hernandez-Castillo, his actual state court sentence – probation or a suspended
sentence – is for some reason not deemed a “judgment” under state law. Thus,
although he served only 157 days in the county jail – a sentence appropriate for a
misdemeanor and not for a felony – this conviction counts as a felony under state
law. It is hard to see the logic in treating imposition of probation or a suspended
sentence as something other than a “judgment” for purposes of classifying the
offense as a felony or a misdemeanor, but that is what state law dictates. W e
wonder if California judges are aware of the momentous consequences under
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federal law of their decision whether to denominate wobbler offenses explicitly as
misdemeanors. Ironically, if the state court had been more severe tow ard M r.
Hernandez-Castillo, by requiring him to serve a few more days in jail instead of
allow ing him to be released immediately, his offense w ould be classified as a
misdemeanor and his guidelines range would be 6 to 12 months.
One might consider this the obvious case where an exercise of Booker
discretion could mitigate a sentence that does not fit the particular facts of the
case, see United States v. Trujillo-Terrazas, 405 F.3d 814, 819-20 (10th Cir.
2005), but unfortunately for M r. Hernandez-Castillo, his lawyer has not
challenged the reasonableness of the sentence. Perhaps the Sentencing
Commission will take a hard look at these guideline definitions, and especially at
the issue of California “wobblers,” to ensure that sentences imposed under this
section are not greater than can be justified.
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