FILED
United States Court of Appeals
Tenth Circuit
June 3, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-2218
FRANCISCO JAVIER GONZALEZ-
JAQUEZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 07-CR-1415 JH)
Joel M. Carson III, Roswell, New Mexico for Defendant-Appellant.
Laura Fashing, Assistant U.S. Attorney (Gregory J. Fouratt, United States
Attorney with her on the brief), Albuquerque, New Mexico for Plaintiff-Appellee.
Before LUCERO, HOLLOWAY and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
Appellant asks us to remand his case for re-sentencing because of the
district court’s impermissible reliance on the pre-sentencing report (PSR) to
determine that he had committed a “crime of violence.” We affirm.
I. Facts
On July 20, 2007, Javier Gonzalez-Jaquez (hereinafter “Mr. Gonzalez”),
pled guilty to illegally re-entering the United States. The probate officer prepared
a PSR, recommending a sixteen level enhancement based on Mr. Gonzalez’s prior
California state conviction for sexual battery, which it deemed a “crime of
violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (recommending a sixteen level
increase for a “crime of violence”). The PSR did not quote or cite the California
statute under which Mr. Gonzalez had been convicted, but it did describe in some
detail the facts of Mr. Gonzalez’s sexual battery. In its sentencing memorandum,
the government quoted the California statute under which Mr. Gonzalez was
convicted, and provided the citation: “California Penal Code § 243.” R. Vol. 1,
48–49. Defense counsel did not challenge the description of the crime in the PSR
or the government’s quotation of the statute.
At the sentencing hearing, the trial court asked defense counsel whether
there were objections to “any of the facts contained in the presentence report.”
Defense counsel answered: “Judge, no factual objections to note.” Sent. Hr. Tr.
3. The court then ruled: “There being no factual objections, the Court will adopt
the factual findings that are contained in the presentence report . . . .” Id.
Defense counsel then argued that the court should not apply the sixteen level
enhancement because this “is the harshest and highest offense level enhancement
anywhere in the guidelines.” Id. at 4. He explained that Mr. Gonzalez was
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“never ultimately advised of the harsh consequences [he would be] facing should
[he] return” to the United States, and that he pled guilty to the sexual battery
charged, thinking that the only consequence would be to receive a probationary
sentence and be deported. Id. Counsel argued that if the sixteen-level
enhancement were applied, the resulting sentence would “go[] beyond the
sentencing goals of 3553.” Id. at 5. He concluded by asking for “a further
variance in this case,” specifically referring to the Booker decision. Id. at 6.
The court, “[a]fter reviewing both the language of the California statute as
well as the submissions by counsel,” deemed the enhancement properly applied to
Mr. Gonzalez. Id. at 7. He was sentenced to a 41-month prison term plus two
years of supervised release. Id. at 9. Mr. Gonzalez appeals, largely on the
ground that nothing in the record supports the conclusion that his prior offense
was a crime of violence.
II. Standard Of Review
As Defendant notes, “[t]here is a potential preservation issue in this case.”
Aplt. Br. 8. Under our precedents, defense counsel’s statement to the district
court that he had “no factual objections to note” to the PSR, coupled with his
failure to argue that his California sexual battery offense was not a crime of
violence, was a forfeiture of the argument, enabling this court to review for plain
error only. United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008);
United States v. Tisdale, 248 F.3d 964, 975 (10th Cir. 2001).
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Defendant argues, however, that several comments made by defense
counsel should be construed as raising an objection to the applicability of the
sixteen-level enhancement. He points in particular to defense counsel’s statement
that the enhancement was the “larger problem” in this case. He also points to the
district court’s conclusion that the enhancement in this case “has been correctly
applied,” Sent. Hr. Tr. 7, from which he asks us to infer that there must have been
an objection that was not correctly applied. Aplt. Rep. Br. 7.
We cannot agree. Even giving defense counsel’s argument a generous
construction, the record makes clear that counsel was not arguing that the
enhancement did not apply. Counsel made a powerful case that the enhancement
was harsh in general and unfair under the circumstances. But this was in service
of an argument that the court should exercise its discretion to grant “a further
variance in this case.” That is not a legal argument that Mr. Gonzalez’s offense
was not a crime of violence. We therefore review for plain error.
III. Whether California Penal Code § 243.4(a) Is A Crime Of Violence
Defendant offers two arguments in support of his appeal: (1) that California
Penal Code section 243.4(a) is not a crime of violence, and (2) that the record did
not clearly show that his prior offense was a violation of California Penal Code
section 243.4(a). We turn in this section to the first argument.
California Penal Code section 243.4(a) provides:
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Any person who touches an intimate part of another person while that
person is unlawfully restrained by the accused or an accomplice, and if the
touching is against the will of the person touched and is for the purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual
battery.
Defendant argues that this offense is not categorically a crime of violence because
it could include non-violent touching. In support of this argument, he cites the
Ninth Circuit’s decision in United States v. Lopez-Montanez, 421 F.3d 926 (9th
Cir. 2005). Like Mr. Gonzalez, Mr. Lopez-Montanez was convicted under
California Penal Code section 243.4(a). The Ninth Circuit rejected the
government’s contention that this statute was categorically a crime of violence on
two grounds. First, it reasoned that the “touching” involved need not involve the
use of force: the touching could be “ephemeral,” but still covered by the statute so
long as it was offensive. Id. Second, the court stated that the “unlawful restraint”
mentioned in the statute did not need to be physical, because it could have been
“accomplished by words alone, including words that convey no threat of
violence.” Id. The court cited an example of a person who had “unlawfully
restrained another” by exerting “psychological force,” without threatening
physical force or violence. Id. at 929–930 (discussing and quoting People v.
Grant, Cal. Rpt. 2d 828, 830–33 (Ct. App. 1992)). Because Mr. Lopez-
Montanez’s crime under the statute might not have involved any physical force,
the Ninth Circuit vacated his sentence and remanded the case for examination of
judicial records to determine the nature of the charges on which he was convicted.
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Id. at 932; see Taylor v. United States, 495 U.S. 575, 602 (1990); United States v.
Romero-Hernandez, 505 F.3d 1082, 1086 (10th Cir. 2007); United States v.
Martinez-Hernandez, 422 F.3d 1084, 1086–87 (10th Cir. 2005).
Defendant’s argument is foreclosed by this court’s decision in Romero-
Hernandez. That case involved a Colorado statute that prohibited, among other
things, sexual contact if “[t]he actor knows that the victim does not consent.”
Colo. Rev. Stat. § 18-3-404(1)(a). This court held that violation of this statute is
categorically a “forcible sex offense” and thus a “crime of violence,” even if not
committed by means of actual physical compulsion. “When an offense involves
sexual contact,” we wrote, “it is necessarily forcible when that person does not
consent.” Id. at 1089. The court reasoned that the term “force,” as used in the
Sentencing Guideline, extends beyond physical compulsion to include cases
“where one party has sufficient control of a situation to overcome . . . another’s
free will.” Id. at 1088. In reaching this holding, the court noted that other
circuits had divided on this issue, and explicitly rejected the Ninth Circuit’s view
that the enhancement does not apply in the absence of force that is violent in
nature. Id. at 1087–88.
It follows that California Penal Code section 243.4(a) is also categorically a
crime of violence. That section of the sexual battery statute applies only “if the
touching is against the will of the person touched.” Under the reasoning of
Romero-Hernandez, that is enough to make it a crime of violence. Indeed, in his
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oral argument before this court, counsel for Mr. Gonzalez conceded that under
Romero-Hernandez he would lose, indicating that Mr. Gonzalez’s crime was at
least a “lack of consent” crime, and so a crime of violence under our precedent.1
IV. Whether The Record Demonstrates That Defendant
Violated California Penal Code § 243.4(a)
Finally, Defendant argues that the record does not support the conclusion
that his prior offense was a violation of California Penal Code section 243.4(a).
The PSR did not explicitly cite or quote the statute of conviction, though it did
describe the facts of the crime. Mr. Gonzalez contends that the statute under
which he was convicted was ambiguous because “[t]he California sexual battery
statute, codified at Cal. Penal Code § 243.4 has four discrete subsections, all of
which do not require as an element the use of force . . . .” Aplt. Br. 10. He relies
on United States v. Bonilla-Mungia, 422 F.3d 316 (5th Cir. 2005). There the
court faced a case similar to Mr. Gonzalez’s, involving the same statute. Because
the record did not indicate “which subsection of § 243.4 applies to Bonilla’s
conviction,” the court was “unable to determine whether his crime-of-violence
enhancement is sustainable,” and remanded to the district court. Id. at 320–21.
1
COURT: “Wait a second. I mean, Sexual battery. I mean, just looking at
it facially, that carries non-consensual contact, doesn’t it?” COUNSEL: “Yes it
does. Judge, if you determine that the evidence before the district court was
sufficient for the judge to determine as a categorical matter that this was 243 and
it was a categorical crime of violence, I lose under Romero-Hernandez.”
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Under this court’s precedents, no such remand is necessary on plain error
review. Because Mr. Gonzalez did not object to application of the “crime of
violence” enhancement, he now bears the burden of showing that the district
court’s failure to require the government to present appropriate judicial
documents establishing which subsection of § 243.4 Mr. Gonzalez was convicted
under affected his substantial rights. United States v. Zubia-Torres, 550 F.3d
1202, 1208–10 (10th Cir. 2008); United States v. Svacina, 137 F.3d 1179, 1187
(10th Cir. 1998). “If the defendant had lodged a proper objection to the
enhancement during the sentencing proceeding, the probation office and the
government would have shouldered the burden of producing appropriate judicial
documents to clarify the nature of [his] crime.” Zubia-Torres, 550 F.3d at 1209.
Having failed to do so, “neither the probation officer, the government, nor the
district court had occasion to seek production of the necessary documents.” Id.
Like the defendant in Zubia-Torres, even on appeal Mr. Gonzalez has proffered
no evidence from which we might conclude that his sentence was actually in
error. Id.
There is an air of unreality about the exercise of wondering whether Mr.
Gonzalez actually committed a crime of violence. See United States v. Virgen-
Chavarin, 350 F.3d 1122, 1132–33 (10th Cir. 2003) (calling a remand for
resentencing “meaningless” where there was no basis to conclude that a different
result would obtain). It seems clear from the sentencing transcript that everyone
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understood the nature of the prior offense, including counsel for Mr. Gonzalez:
Mr. Gonzalez had been convicted of, and pled guilty to a crime of violence, and
putting aside counsel’s argument for a variance, he merited a sixteen-level
enhancement. If defense counsel had objected to the characterization of the
offense as a crime of violence, the burden would have been on the government to
prove under which subsection of California’s sexual battery statute Defendant was
convicted. Having not done so, he cannot now force a remand without making a
showing that characterization was incorrect.
V. Conclusion
We AFFIRM the decision of the district court.
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