United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 26, 2007 Decided March 16, 2007
No. 05-3045
UNITED STATES OF AMERICA,
APPELLEE
v.
MANUEL DE JESUS VENTURA, A/K/A MARIO
HERNANDEZ-CHACON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00288-01)
Jonathan S. Zucker, appointed by the court, argued the
cause and filed the briefs for appellant.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III, Lisa H. Schertler, and
Elizabeth Gabriel, Assistant U.S. Attorneys.
Before: SENTELLE, HENDERSON and ROGERS, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
2
PER CURIAM: Defendant appeals his sentence for a
conviction under federal immigration laws. He pled guilty and
was sentenced to 93 months incarceration. At the time he was
sentenced, the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), was less than two months old.
The district court interpreted that case as permitting it to enter
a sentence without making a specific finding of the appropriate
range under the federal sentencing guidelines. On appeal,
defendant advances a number of arguments, including the
district court’s failure to calculate the applicable guidelines
range. In light of Booker’s changes to the sentencing regime,
we conclude that the district court may have erred, but the
ambiguity in the record prevents accurate review. Accordingly,
we vacate Ventura’s sentence and remand for resentencing.
***
Ventura is a citizen of El Salvador with a decade-long
history of unlawfully entering this country and committing
crimes herein. He entered the country in 1997 and was deported
shortly thereafter. He returned for the second time in 1999, was
convicted of felony abduction in Virginia in 2001, and was
sentenced to 18 months incarceration. While serving that
sentence, he was also convicted of illegal reentry after
deportation and sentenced to seven months incarceration. Upon
completing both sentences, Ventura was again deported. He
returned to the United States for the third time in 2003, and was
convicted of a number of crimes. On June 17, 2004, while
serving a sentence for those convictions, he was charged with
the offense that is the subject of this appeal: reentering the
United States after having been deported following conviction
of the Virginia crime, in violation of 8 U.S.C. § 1326(a) and
3
(b)(2). He pled guilty on December 3, 2004.
The district court sentenced Ventura on March 7, 2005. The
primary dispute at Ventura’s sentencing hearing was the
calculation of the appropriate guidelines range. In particular, the
parties disagreed about whether Ventura’s base offense level
should be increased by eight or sixteen levels. A sixteen-point
increase was appropriate if the crime of which he was previously
convicted – abduction under Virginia law – was a “crime of
violence,” while an eight-point increase was appropriate if it was
only an “aggravated felony.” U.S.S.G. § 2L1.2(b)(1). The
government argued that “the conviction . . . bolstered by the
factual proffer” justified the conclusion that the sixteen-point
increase was appropriate. The defendant contended that the
actual conduct was “irrelevant” because the district court was
limited to a categorical approach in which it should look only to
the elements of the offense rather than the underlying facts. The
district court held that Booker superseded the categorical
approach, permitting it to consider the factual proffer included
in the presentence investigation report. “Indeed, in the
aftermath of Booker,” the court stated, “it would appear that the
facts relating to the events that a person was previously
convicted of are more than fair game for the Court to consider
in determining what is the appropriate sentence.” The court
stated several times that, as it understood Booker, it was no
longer required to make a specific finding as to the appropriate
guidelines range. Rather, it had only to consider each party’s
arguments. Announcing the sentence, the district court
concluded: “on balance, the better arguments legally – and I’m
not making a specific finding – are to treat the conduct that you
engaged in as a crime of violence.”
Less than two months before Ventura’s sentencing, the
Supreme Court held, in Booker, that sentencing courts could not
treat the federal sentencing guidelines as mandatory. 543 U.S.
4
at 245-46. Nonetheless, sentencing courts remain obligated to
calculate and consider the appropriate guidelines range. Id.; see
also United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir.
2005). In the instant case, the district court expressly eschewed
making a specific finding as to the guidelines range applicable
to Ventura. The government argues that we should consider the
merits of defendant’s arguments because the record implies that
the district court concluded that the appropriate guidelines range
was that resulting from the sixteen-point increase advocated by
the government at sentencing. We disagree. The present record
is insufficient to permit our review, and we must vacate
Ventura’s sentence and remand for resentencing.
Were we to infer that the district court did, in fact, make a
specific finding, we would be ignoring its express and repeated
statements to the contrary. But neither do we infer, as defendant
suggests, that plain errors were made. It is simply not clear from
the record what findings influenced the sentence. The watershed
ruling in Booker created a new – and at that time unexplored –
sentencing regime that raised numerous questions for sentencing
courts. The district court had to render its sentence without the
benefit of subsequent cases clarifying the extent of the changes
wrought by Booker. A remand will permit the district court to
start on a clean slate. Upon resentencing, the district court will
enter a new sentence based on its consideration of the calculated
applicable guidelines range as well as the factors enumerated in
18 U.S.C. § 3553. We do not intend to imply either that the
district court must change the sentence or re-enter it unchanged
on remand, only that it should calculate defendant’s sentence in
accordance with current law.
***
5
We note that the question whether the Virginia statute under
which Ventura was previously convicted constitutes a “crime of
violence” for sentencing purposes is a vexing one. To answer
it, the Virginia statute must be compared with a generic,
contemporary definition of kidnapping. See Taylor v. United
States, 495 U.S. 575, 598 (1990). If the elements of abduction
under Virginia law are identical to, or narrower than, those of
generic kidnapping, Ventura’s conviction is properly considered
a crime of violence. Under this categorical approach, the actual
conduct underlying the conviction is not typically considered.
In limited circumstances, however, the district court may review
underlying facts. Id. at 602 (noting that the sentencing judge
may “go beyond the mere fact of conviction in a narrow range
of cases where a jury was actually required to find all the
elements” of the generic crime); see also Shepard v. United
States, 544 U.S. 13, 26 (2005) (holding that, in the context of
guilty pleas, Taylor’s exception extends to the “terms of the
charging document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information”). The
government argues that we should immediately resolve the
question whether Ventura’s prior conviction was for a “crime of
violence” because this is a question of federal law that we
review de novo. We conclude that it would be premature to
address this issue at the present time. We do not know what
sentence the district court will impose on remand, and we do not
know whether the new sentence – and the crime of violence
issue – will be subsequently appealed to this Court. Cf.
Coumaris, 399 F.3d at 351 (noting, in light of the Court’s
remand for resentencing, that reviewing the district court’s
application of the guidelines would be “premature at best and
unnecessary at worst”). We thus conclude that the appropriate
course of action is to remand the matter for resentencing based
on full consideration of all relevant factors, including questions
6
of law and issues of fact.
In light of the ambiguity in the district court’s decision, we
vacate Ventura’s sentence and remand for resentencing.
So ordered.