United States v. Perez-Perez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 2, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-2293
LEOD EGA RIO PEREZ-PEREZ, (D.C. No. CR-06-480 BB)
(D .N.M .)
Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before T AC HA , B AL DOC K , and KELLY, Circuit Judges.

Border Patrol agents discovered Defendant, a M exican National, near

Deming, New M exico in January 2006. Defendant was charged in an Information

with illegally reentering the United States following deportation subsequent to

being convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(b)(2).

Defendant entered into a plea agreement with the Government pursuant to Fed. R.

Crim. P. 11. The agreement provided the Government could withdraw from the

agreement if it later learned Defendant’s previous conviction allowed for a

sentencing enhancement under the United States Sentencing Guidelines

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
(U.S.S.G.). After it entered into the plea agreement, the Government learned

Defendant’s previous felony conviction qualified as a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii), and thus, Defendant was subject to an

enhancement. W hen the parties appeared before the district judge for sentencing,

the Government, for the first time, notified the court that Defendant was subject

to the enhancement. After continuing the sentencing hearing to allow for

briefing, the district court allowed the Government to withdraw from the

agreement. The district court sentenced Defendant to 30-months in prison, a

sentence that fell between what Defendant would have received pursuant to the

plea agreement and what he would have received without the agreement.

D efendant now appeals arguing the Government breached the plea agreement. H e

seeks specific performance of the agreement. Defendant also argues the district

court imposed an unreasonable sentence. W e have jurisdiction pursuant to 28

U.S.C. § 1291 and we affirm.

I.

On October 4, 2001, Defendant pled guilty to second degree assault in

Shelton County, W ashington. Defendant served some jail time, and authorities

deported him to M exico. On M arch 14, 2006, after Defendant was arrested and

charged with reentry of a deported alien previously convicted of an aggravated

2
felony, he entered a “Fast Track” plea agreement with the United States. 1

Pursuant to the plea agreement, the parties stipulated that for purposes of

calculating Defendant’s sentence, his offense level was 12. Also, the Government

agreed to recommend a sentence at the low er end of the guideline range. In

exchange, Defendant agreed not to collaterally attack reinstatement of his prior

order of deportation, seek appeal, or seek a downward departure. Particularly

important to our disposition of this case is paragraph 8(a) of the plea agreement

which reads as follow s:

The Defendant and the United States agree pursuant to Fed. R. Crim.
P. 11(c)(1)(C) that the Defendant’s final adjusted sentencing
guidelines offense level is twelve (12), and that Defendant’s criminal
history category will be determined by the United States Probation
Office and reflected in the original presentence report prepared in
this case. This stipulation is based upon the information currently
known to both parties; specifically, that the Defendant has no felony
conviction that qualifies as a conviction under United States
Sentencing Guidelines § 2L1.2(b)(1)(A) or § 2L1.2(b)(1)(B) which
became final prior to the Defendant’s most recent removal from the
United States. If the United States learns, prior to sentencing in this
matter, that the Defendant has one or more such convictions, the
United States reserves the right, in its sole discretion, to withdraw
this plea agreement.

On April 26, 2006, the United States Probation Office completed the

presentence report (PSR) and provided it to the Government and Defendant. The

1
The Fast Track program provides shorter sentences for defendants
charged with certain immigration offenses w ho, early in the process, plead guilty
and waive their rights to file certain motions and appeal. See United States v.
M orales-C haires, 430 F.3d 1124, 1127 (10th Cir. 2005).

3
PSR characterized Defendant’s prior assault conviction as a crime of violence

pursuant to U.S.S.G. §2L1.2(b)(1)(A)(ii), a circumstance requiring a 16-level

sentencing enhancement. The enhancement raised Defendant’s offense level from

12, which the parties agreed to in their plea agreement, to 21. The PSR noted

Defendant’s sentencing range would be 46 to 57 months should the enhancement

apply.

Although the Government had ample time to object to the PSR and/or

withdraw from the plea agreement, nothing transpired between the release of the

PSR on April 26th and the sentencing hearing scheduled on June 15, 2006.

Defendant appeared at the sentencing hearing on the morning of June 15th

expecting the judge to sentence him to 12 to 15 months in prison as envisioned by

the plea agreement. M oments into the hearing, the G overnment notified the court

that it had only the night before reviewed the PSR and discovered the Probation

Office considered Defendant’s previous conviction a crime of violence. The

Government argued Defendant should not be sentenced based on the offense level

of 12 agreed to in the plea agreement. The Government asserted a 46 to 57 month

sentence was appropriate as it took into account the crime of violence

enhancement.

The Assistant United States Attorney (AUSA ) apologized for the surprise,

and explained to the judge he mistakenly made Defendant the wrong offer

because he misinterpreted the W ashington assault statute. The AUSA explained

4
the Government was not seeking to withdraw from the agreement because, “[the

Government] had the same information when [it] made the offer as [it] does

now.” Instead, the AUSA asked the court to reject the plea agreement. The

AUSA stated: “I made the wrong offer. And I think under Rule 11, the Court has

the discretion, if the Court chooses, to use it to reject the plea agreement.” The

district judge decided to continue the sentencing hearing and allow the parties to

submit briefing on whether Defendant’s assault conviction qualified as a crime of

violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and the continued validity of the

plea agreement.

Several weeks after the first sentencing hearing the parties submitted

sentencing memoranda. In his sentencing memorandum, Defendant asked the

court to specifically enforce the plea agreement. He also argued his prior assault

conviction was not a crime of violence, and thus, the sentencing range envisioned

in the plea agreement was reasonable. The Government, in its sentencing

memorandum, argued Defendant’s prior conviction was a crime of violence, but,

contrary to its assertion at the June 15th hearing, the Government stated it

acquired additional information regarding Defendant’s prior felony conviction

during the interim between signing the plea agreement and the sentencing hearing.

According to the Government’s memorandum, not until after the Government

entered the plea agreement did the probation officer obtain a document entitled

“Statement of Defendant on Plea of Guilty” from the state proceeding detailing

5
the circumstances of Defendant’s assault conviction and convincing the

Government the crime was indeed a crime of violence. The G overnment also

changed course on the relief it requested. In its memorandum, the Government

did not ask the court to reject the plea agreement, stating that to request such

relief would “violate the spirit of the agreement.” Instead, the Government asked

the court to allow it to withdraw from its agreement with Defendant. The

Government argued the revelations contained in the “Statement of Defendant on

Plea of Guilty” invoked paragraph 8(a) of the plea agreement, and the

Government should be allowed to withdraw from the plea agreement.

The parties reconvened before the district court for a sentencing hearing on

August 25, 2006. At that hearing, the district judge allowed the Government to

withdraw from its plea agreement and proceeded to sentence Defendant. 2 The

court found the United States entered into the agreement on an erroneous factual

assumption— namely that Defendant’s prior conviction was not a crime of

violence— and that under such circumstances, the plea agreement allowed the

Government to withdraw. Analyzing the 18 U.S.C. § 3553 factors and

considering the unfortunate snafu surrounding the plea agreement, the court

2
At oral argument, the Government stated it never moved to withdraw
from the plea agreement, and thus, the district court’s actions at the August 25,
2006, amounted to the court’s rejection of the plea agreement. The record does
not support the Government’s assertion. In its sentencing memorandum, the
Government clearly stated, “This Court should allow the United States to
withdraw from its agreement with Perez . . . .”

6
sentenced Defendant to 30 months in prison. The sentence did not fall within the

15-21 months envisioned by the plea agreement or the 46 to 57 months the

Government urged absent the plea agreement.

II.

W e must first decide whether the Government breached the plea agreement

when it sought to withdraw from the agreement after learning Defendant’s prior

assault conviction qualified as a crime of violence. A claim the Government has

breached a plea agreement is a question of law that we review de novo. United

States v. Peterson, 225 F.3d 1167, 1170 (10th Cir. 2000). W e apply a two-step

analysis to determine if the G overnment breached a plea agreement: “(1) we

examine the nature of the Government’s promise; and (2) we evaluate this

promise in light of the defendant’s reasonable understanding of the promise at the

time the guilty plea was entered.” United States v. Guzman, 318 F.3d 1191, 1195-

96 (10th Cir. 2003). Principles of general contract law guide our analysis of the

Government’s obligations under the agreement. See id. at 1195. Thus, in

assessing whether the Government has breached the agreement, we look to the

express terms of the agreement and construe any ambiguities against the

government as the drafter of the agreement. See id.

Pursuant to the agreement, the Government promised to stipulate to an

adjusted offense level of 12. Paragraph 8(a) qualified this promise by allowing

the Government to withdraw from the agreement if the Government later learned

7
Defendant had a prior felony conviction that constituted a crime of violence.

Thus, according to the plain language of the agreement, the Government was

entitled to withdraw from the plea agreement when it became aware that

Defendant’s prior assault conviction was a crime of violence.

Defendant argues the Government’s failure to withdraw from the agreement

prior to the day of sentencing and the Government’s apparent confusion as to its

requested remedy amounted to a breach of the agreement. W e do not think the

Government’s failure to notify the court of its desire to withdraw from the

agreement prior to the day of sentencing constitutes a breach. Undoubtedly, the

Government’s delay was clearly in bad form. 3 Technically though, the

Government notified the court that Defendant’s previous conviction was a crime

of violence and sought to withdraw from the agreement prior to Defendant

actually being sentenced. The plea agreement did not require the Government to

notify the court or Defendant of its intention to withdraw from the agreement one

3
The Federal Rules of Criminal Procedure set forth clear deadlines for
parties in criminal matters for objecting to PSR s precisely to prevent the problem
we are dealing with today. Fed. R. Crim. P. 32(e) requires the probation office to
provide the PSR to the defendant and the government’s attorney no later than 35
days before sentencing. Fed. R. Crim. P. 32(f) requires the parties to object
within 14 days of receiving the report if they take issue with the substance of the
PSR. The G overnment’s admission that it reviewed the PSR the night before
sentencing only to discover Defendant’s previous felony was a crime of violence,
constitutes an admission that it did not follow the above required procedure. The
Government is without excuse and is admonished to heed the dictates of Rule
32(f) in all sentencings.

8
week, two weeks or even one day before sentencing, but instead allowed the

Government to withdraw from the agreement “prior to sentencing.”

The Government’s confusion concerning whether it wanted the court to

reject the plea agreement or whether it wanted to withdraw from the plea

agreement is also beside the point. In the confusion of the June 15th hearing, the

AUSA asked the court to reject the plea agreement and stated the Government had

the same information when it made the plea agreement as it did on that day. But,

the sentencing memorandum, which was the Government’s final word before the

district court after reflection and investigation, clarified the G overnment’s

position. That document noted that not until after the parties signed the plea

agreement did the Probation Office discover the “Statement of Defendant on Plea

of G uilty” detailing the circumstances of the crime and establishing Defendant’s

assault conviction was indeed a crime of violence. The Government also sought

withdrawal from the plea agreement in the sentencing memorandum, the remedy

ultimately called for in the plea agreement.

As to the second prong of the test— Defendant’s reasonable understanding

of the promise at the time the guilty plea was entered— we note Defendant was

well aw are of the circumstances of his state court conviction when he entered into

the plea agreement with Government. Defendant admitted in the “Statement of

Defendant on Plea of Guilty” that he “assaulted M s. Howland which caused

substantial bodily harm in M ason County.” Defendant should have known when

9
the Government discovered this information it would seek to withdraw from the

plea agreement. W hen the Probation Office disclosed the PSR, however,

Defendant sat quietly, apparently hoping the Government would not withdraw

from the plea agreement. Because the plea agreement allowed the Government to

withdraw from the agreement if Defendant’s assault conviction was a crime of

violence, Defendant should have objected to the “crime of violence”

characterization long before the sentencing hearing. Defendant did not challenge

the crime of violence characterization until after the Government exercised its

right to w ithdraw from the plea agreement. W e conclude under these

circumstances, the plain language of the agreement allowed the Government to

withdraw from the agreement and doing so did not amount to a breach of the

agreement.

III.

Defendant also argues the 30-month sentence the district court imposed was

unreasonable. In considering the district court’s application of the Guidelines, w e

review factual findings for clear error and legal determinations de novo. United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). W e review sentences

imposed post-Booker for reasonableness. Id. at 1054-55. Reasonableness has

both procedural and substantive components which encompass, respectively, the

method by which the sentence was calculated and the length of the sentence. See

id. at 1055. Defendant argues his sentence is both procedurally and substantively

10
unreasonable.

A.

To assess the procedural reasonableness of a defendant’s sentence, we

examine whether the district court appreciated the advisory nature of the

Guidelines, correctly calculated the applicable Guidelines range, and considered

the § 3553(a) factors when crafting the sentence. See United States v.

Sanchez-Juarez, 446 F.3d 1109, 1114-15 (10th Cir. 2006). W e also require the

district court to explain its reasons, though not in great detail, for imposing a

particular sentence. Id. at 1116 (“[T]he court’s failure to give reasons for its

decision would leave us in a zone of speculation on appellate review.”) (internal

quotations omitted).

1.

Defendant’s argument concerning procedural reasonableness is twofold.

First, Defendant argues the court erred in calculating his sentence by applying a

16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). That provision

provides the offense level of a defendant convicted of illegally reentering the

United States is increased by 16 levels if the defendant was deported after a

previous conviction for a felony “crime of violence.” The term “crime of

violence” is defined in the Guidelines to include certain specific offenses not at

issue here, as well as “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

11
person of another.” § U.S.S.G. 2L1.2, comment 1(B)(iii). Defendant asserts the

district court erred by applying the § 2L1.2(b)(1)(A)(ii) enhancement because the

W ashington assault statute under which he was convicted does not necessarily

require the actual use, attempted use, or threatened use of physical force. 4

W e recently held in United States v. Perez-Vargas, 414 F.3d 1282, 1287

(10th Cir. 2005), that Colorado third-degree assault convictions, under a statute

similar to the W ashington assault statute, did not categorically qualify as crimes

of violence under § 2L1.2(b)(1)(A)(ii) because the statutory language “does not

necessarily include the use or threatened use of ‘physical force’ as required by the

Guidelines.” Id. W e stated a reviewing court could properly look beyond an

ambiguous assault statute to charging documents, the terms of the plea agreement,

or some comparable judicial record to determine on a case-by-case basis whether

an assault conviction qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii).

Id. at 1284 (citing Shepard v. United States, 544 U.S. 13, 24-26 (2005)). The

4
The relevant provisions of W ashington’s second degree assault statute,
W ash. Rev. Code § 9A.36.021 provide:

(1) A person is guilty of assault in the second degree if he or she,
under circumstances not amounting to assault in the first degree:

(a) Intentionally assaults another and thereby recklessly inflicts
substantial bodily harm; or
***
(c) Assaults another with a deadly weapon; or
***
(e) W ith intent to commit a felony, assaults another . . . .

12
G overnm ent does not dispute Washington’s assault statute is ambiguous, 5 but w e

need not tarry long on this issue because Defendant made a factual concession as

part of his state court plea demonstrating his prior conviction qualifies as a crime

of violence.

In the “Statement of Defendant on Plea of Guilty,” filed in W ashington

State court and later made part of the record before us, Defendant acknowledged

the elements of the crime to w hich he w as pleading guilty were as follows: “[I]n

M ason County, on 6/12/01, [D efendant] did intentionally assault Cecelia

Howland, and inflicted substantial bodily harm.” See United States v.

Torres-Ruiz, 387 F.3d 1179, 1183 (10th Cir. 2004) (holding “intent” to use, or

threaten to use, force is required under § 2L1.2(b)(1)(A)). These elements track

most closely with W ash. Rev. Code § 9A.36.021(a) except the term “recklessly”

is omitted. See supra, n. 4. W hen asked to state what he did in his own w ords,

Defendant made the following admission: “On 6/12/01 I assaulted M s. Howland

which caused substantial bodily harm in M ason County.” These admissions show

Defendant intended to both assault his victim and use physical force against her,

thus bringing his state conviction within the parameters of § 2L1.2(b)(1)(A)(ii).

Compare United States v. Ortega-Estrada, 2006 W L 3491779, at *7-8 (10th Cir.

5
The parties agree that the term “recklessly” as used in W ash. Rev. Code
§ 9A.36.021(a) removes convictions under subsection (a) from being considered,
categorically, crimes of violence.

13
Dec. 5, 2006) (holding defendant’s admission that he threatened his victim and

cut her with a knife contained in his “Statement of Defendant on Plea of Guilty”

filed in W ashington state court, conclusively demonstrated his second degree

assault conviction qualified as a crime of violence).

W hile D efendant’s admissions are almost certainly adequate for us to

conclude his assault conviction involved actual use, attempted use, or threatened

use of physical force, we look further to W ashington’s common law definition of

assault to determine the exact nature of Defendant’s admission that he “assaulted”

M s. Howland. 6 See United States v. Quijada, 2005 W L 2093036, at *4 (10th Cir.

August 31, 2005) (consulting M assachusetts’s common law definition of assault

and battery where the terms were not defined statutorily). W ashington recognizes

three common law definitions of assault including “(1) an attempt, with unlawful

force, to inflict bodily injury upon another; (2) an unlaw ful touching with

criminal intent; and (3) putting another in apprehension of harm whether or not

the actor intends to inflict or is incapable of inflicting that harm.” Clark v.

Baines, 84 P.3d 245, 247 n.3 (W ash. 2004) (internal citations and quotations

omitted). Because Defendant pled guilty to intentionally assaulting his victim

and causing her bodily harm, the first definition of assault— an attempt, with

unlawful force, to inflict bodily injury upon another— is the most relevant

6
W e look to W ashington’s common law definition of assault because it is
not defined statutorily. See Clark v. Baines, 84 P.3d 245, 247 n.3 (W ash. 2004).

14
definition. Application of this definition of assault certainly encompasses the

“use, attempted use, or threatened use of physical force against the person of

another,” and thus qualifies as a crime of violence pursuant to §

2L1.2(b)(1)(A)(ii). Defendant’s assertion that he could have been guilty of the

third enumerated definition of assault— putting another in apprehension of harm

whether or not the actor intends to inflict or is incapable of inflicting that

harm— does not survive our scrutiny. W e do not see how application of this

comm on law definition of assault jives with Defendant’s admission he

intentionally inflicted bodily harm on M s. Howland. The relevant common law

definition of assault along with Defendant’s admissions lead us to conclude

Defendant cannot establish the district court’s application of the

§ 2L1.2(b)(1)(A)(ii) enhancement was error.

2.

Next, Defendant contends the district court failed to adequately explain its

reasons for an upward variance in his sentence. Defendant’s argument completely

misses the mark as it is premised on the faulty notion that the proper guideline

range was 15-21 months as envisioned by the plea agreement. By allowing the

Government to withdraw from the plea agreement, the district court was in no

way required to consider the stipulated adjusted offense level 12 and the 15-21

month guideline range. Because D efendant’s assault conviction qualified as a

crime of violence, the court applied a 16-level enhancement as required by

15
§ 2L1.2(b)(1)(A)(iii), and arrived at an adjusted offense level of 21 and a

sentencing range of 46 to 57 months. Thus, Defendant’s 30-month sentence was

actually a downward departure from the applicable guideline range.

To the extent Defendant argues the district court did not adequately explain

its refusal to vary even further from the advisory guideline range, we are not

persuaded. Our cases have made clear a district court need only entertain the

defendant’s arguments for a below -Guidelines sentence, indicating on the record

that it considered the § 3553(a) factors. Sanchez-Juarez, 446 F.3d at 1117. The

district court need not explicitly reference each of the § 3553(a) factors or

respond to every argument for leniency that it rejects in arriving at a reasonable

sentence. United States v. Jarrillo-Luna, 478 F.3d 1226, 1229 (10th Cir. 2007).

The record clearly shows the district court considered Defendant’s arguments, as

evidenced by the rather large downward variance, and weighed the § 3553 factors

to fashion a just sentence.

B.

Defendant also argues his 30-month sentence was unnecessarily long and

thus substantively unreasonable. The Supreme Court recently held that a sentence

is substantively reasonable so long as the district court did not abuse its

discretion. See Rita v. United States, 127 S. Ct. 2456, 2465 (2007). To assess

substantive reasonableness, we consider whether the sentence imposed by the

district court is unreasonable in light of the § 3553(a) factors. Kristl, 437 F.3d at

16
1054-55.

Defendant’s primary argument concerning substantive reasonableness is

that the recommended sentencing guidelines Congress fashioned for illegal re-

entry cases are “presumptively unreasonable” because they have “devolved into

an excessively harsh sentencing scheme.” Defendant’s argument is beyond our

purview as it is essentially an attack on policy decisions made by the United

States Sentencing Commission. As we have noted, disagreement with policy

decisions incorporated into the Sentencing Guidelines is not a valid reason for

imposing a sentence outside a properly calculated guideline range, or in this case

varying even further from the properly calculated guideline range. United States

v. M cCullough, 457 F.3d 1150, 1171-72 (10th Cir. 2006); see also Ortega-

Estrada, 2006 W L 3491779, at *12. Furthermore, our review of the record leads

us to conclude the 30-month sentence imposed by the district court was

reasonable in light of the § 3553(a) factors, and thus the district court did not

abuse its discretion in imposing the sentence. Again, we note the district court

considered the § 3553 factors, weighed the seriousness of Defendant’s crime

along with the unfortunate confusion with the plea agreement, and imposed a

17
sentence well below the recommended guideline range.

A FFIR ME D.

Entered for the Court,

Bobby R. Baldock
Circuit Judge

18