United States v. Moreno-Arredondo

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50603

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL MORENO-ARREDONDO, also known
as RAFAEL MORENO,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
--------------------
June 19, 2001

BEFORE DAVIS, WIENER, and STEWART, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Rafael Moreno-Arredondo (“Moreno”) was

convicted on his plea of guilty to one count of illegal re-entry

into the United States in violation of 8 U.S.C. § 1326. The

government sought and obtained enhancement of Moreno’s sentence

under § 1326(b)(2) based on pre-deportation convictions in Texas on

two counts of committing the aggravated felony of Indecency with a

Child. On appeal, Moreno asserts two claims: (1) His indictment

was fatally defective for failing to allege his prior felony

convictions as an element of the offense; and (2) the district

court erred in calculating his sentence when it determined that the

two prior child indecency sentences were for offenses that (a) did
not occur on the same occasion and (b) were not consolidated for

trial, and thus were not “related” as that term is used in

determining his criminal history score under sentencing guideline

§ 4A1.2(a)(2). We reject Moreno’s attack on his indictment, which

he concedes is foreclosed by the Supreme Court’s ruling in

Almendarez-Torres v. United States1 that § 1326(b)(2) does not

create a separate criminal offense but instead sets out a

sentencing factor.2 Agreeing with Moreno, however, that the state

convictions for which he was sentenced more than a decade earlier

were for offenses that “occurred on the same occasion”3 and thus

were “related” for purposes of § 4A1.2.(a)(2), we vacate his

sentence and remand to the district court for resentencing.

I. Facts and Proceedings

A. Background

As noted, Moreno pleaded guilty to one count of illegal re-

entry into the United States in violation of 8 U.S.C. § 1326. The

government sought an enhanced penalty under § 1326(b), contending

that Moreno had been deported subsequent to convictions in a state

court in Texas of two aggravated felonies. The facts underlying

the Texas convictions are not altogether clear and are internally

inconsistent and contradictory, to say the least. There is no

1
523 U.S. 224, 235 (1998).
2
Moreno expressly acknowledges that he raises the Almendarez-
Torres claim solely to preserve it for further review on the basis
of the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S.
466 (2000) which expressed doubt about the correctness of its
Almendarez-Torres decision.
3
U.S. Sentencing Guidelines Manual § 4A1.2(a)(2), cmt., n.3
(2000).

2
question, though, that in 1988 Moreno was indicted for, charged

with, and convicted of indecency with Monica and Marsha Garza, two

minor daughters (respectively eight and nine years old at the time)

of Moreno’s then-girlfriend, Virginia Garza, in whose home he, she,

and her children resided. The discrete facts underlying the

convictions are less certain. According to the contemporaneous

testimony of the two young girls, Moreno touched each of them

inappropriately —— within moments; on the same day (while their

mother was out shopping “for just a little while”); without ever

leaving his seat on a couch in the front room of their house.

Initially, Monica testified that Moreno had not touched her, after

which she was excused from the witness stand and sent to sit with

her mother in the rear of the courtroom while her sister, Marsha,

testified. Marsha said that she had come into the front room of

the house and had seen Monica sitting on the couch next to Moreno.

According to Marsha, Monica then got up and left, and she (Marsha)

went to the couch and sat next to Moreno, who then touched her

inappropriately. At the conclusion of Marsha’s testimony, Monica

was recalled to the stand, and she testified that in fact Moreno

had touched her. The sisters’ testimony was inconsistent as to the

sequence of the disputed touchings: Each girl testified that she

had been touched first and had then left the room when the other

entered.

In addition to that testimony, the prosecution introduced a

statement prepared by a police officer and signed by Moreno while

in custody following his arrest. In that statement Moreno admitted

touching the girls, but said that both were present at the

3
beginning of the episode and that he had touched Monica first and

Marsha second. Moreno’s counsel unsuccessfully challenged the

admission of the statement on the basis of involuntariness.

Moreno took the stand and denied inappropriately touching the

girls at all, stating that he had confessed only because police

officers told him several times while he was being processed

following his arrest that “it would go better for [him]” and that

if he did not confess “it would go very badly.” Both Moreno and

the interviewing police officer testified that Moreno had initially

denied touching the girls or at least was equivocal about his

involvement, and that only after he was being led from the

interview to be locked up did he agree to sign the statement. In

the end, the jury convicted Moreno on both counts.

Moreno had been charged in two separate indictments under

separate cause numbers, but was tried on both charges in the same

proceeding. He was also sentenced at one proceeding which

culminated in the state trial court’s assessing 20-year consecutive

sentences. Moreno was released on parole in 1991, then deported to

Mexico. Some time later, he re-entered the United States

illegally.

B. The Instant Proceedings

In 1997, Moreno was arrested in Texas on a charge of

endangering a child by driving while intoxicated. While in jail on

that charge, Moreno was discovered by officials of the Immigration

and Naturalization Service, and the instant prosecution for illegal

re-entry was initiated in federal district court. Thereafter, his

4
parole on the Texas indecency convictions was revoked, and he was

sentenced to serve 40 years in state prison.

Following Moreno’s conviction based on his guilty plea to the

charge of illegal re-entry, the probation department prepared a

Presentence Investigation Report (PSR). As Moreno had been

deported following conviction for committing an aggravated felony,

his base offense level was adjusted upward pursuant to §

2402(b)(1)(A). As a result, his base offense level of eight was

increased by 16, to 24, from which it was reduced three points for

acceptance of responsibility, producing a final level of 21.

In calculating Moreno’s criminal history score, the probation

officer added six points —— three for each of the two prior

sentences for Indecency with a Child —— pursuant to guideline §

4A1.2(a)(2) after concluding that the cases were not related. This

produced a final criminal history score of ten, resulting in a

Criminal History Category of V. Moreno’s sentencing guideline

range was determined to be 70-87 months based on his offense level

of 21 and his Criminal History Category of V.

Moreno filed a motion for a downward departure, contending

that he was wrongfully convicted of the indecency charges, as

confirmed by current statements of the alleged victims (now adults)

who recanted the testimony that they had given as minors during his

state court trial. Now adults, the girls explain that their

grandmother, with whom they had been placed by “child protective

services,” had coerced them into falsely accusing Moreno of

touching them. According to Marsha and Monica, their grandmother

had told them that the only way they could return to live with

5
their mother was to “get her away from [Moreno]....” Twenty-one

year-old Marsha, now married and the mother of two, testified at

Moreno’s federal sentencing hearing that she and her sister had

falsely testified against Moreno in his state child indecency trial

under pressure from their grandmother. Monica, who was pregnant

and in labor at the time of Moreno’s sentencing and thus unable to

attend, filed a letter that states essentially the same thing.

Moreno also objected to the PSR’s calculation of his criminal

history score. He argued that his two state indecency sentences

should have been treated as resulting from “related” cases for

purposes of guideline § 4A1.2(a)(2), not from separate cases. If

they had been treated as related, his criminal history score would

have been increased by only three points, not six, which would have

placed him in the lower Criminal History Category of IV, in turn

producing a lower sentencing range.

The district court refused to depart downwardly and overruled

Moreno’s objection to the calculation of his criminal history score

on the basis of separate rather than related convictions. The

court imposed a 70-month sentence of imprisonment, the bottom of

Moreno’s guideline range. Moreno timely filed a notice of appeal,

and this review ensued.

II. Analysis

A. Issues Presented for Appeal

In the district court, Moreno advanced complaints about (1)

his indictment, (2) the court’s refusal to grant a downward

departure based on the invalidity of his prior state indecency

6
convictions, (3) the continued application of Almendarez-Torres,4

and (4) the calculation of his Criminal History Category on the

basis of two unrelated prior sentences, contending they were

related because they resulted from offenses that (a) occurred on

the same occasion, (b) were part of a single common scheme or plan,

and (c) were consolidated for both trial and sentencing. On

appeal, however, Moreno presses only the Almendarez-Torres

complaint and the criminal history issue implicating “related

cases” for purposes of Guideline § 4A1.(2)(a)(2). Moreover, in

pursuing the criminal history issue, Moreno relies on only two

grounds for finding that the two Texas indecency sentences are

related: that the offenses occurred on the same occasion and that

they were consolidated for trial; he no longer contends that these

offenses were part of a single common scheme or plan or that they

were consolidated for sentencing. We shall address these remaining

appellate issues in turn.

B. The Almendarez-Torres Issue

Concededly advanced to preserve the issue for future review in

light of the Supreme Court’s decision in Apprendi v. New Jersey,5

Moreno argues that his prior aggravated-felony conviction is an

element of his illegal re-entry offense, not merely a sentence-

enhancing factor. He notes that § 1326(a) specifies that an alien

convicted of illegal re-entry following deportation faces a maximum

prison sentence of only two years, but that § 1326(b)(2) specifies

4
523 U.S. 224 (1998).
5
530 U.S. 466 (2000).

7
a maximum sentence of 20 years if the alien was deported subsequent

to a conviction for an aggravated felony. After holding in

Almendarez-Torres that § 1326(b)(2) does not create a separate

criminal offense but rather is a sentencing factor,6 the Supreme

Court in Apprendi expressed misgivings about the propriety of its

Almendarez-Torres holding. Only the hope that the Court might

eventually revisit and reverse its position prompted Moreno to

lodge the issue here and thereby preserve it. As Almendarez-Torres

remains good law, however,7 we cannot grant relief to Moreno on

this claim.

C. Calculation of Criminal History Score: “Related Cases”

1. Standard of Review.

“We accept district court findings relating to sentencing

unless clearly erroneous, but we review de novo application of the

guidelines.”8 “We review district court determinations about []

relatedness de novo,”9 at least as to offenses asserted to have

occurred on the same occasion.10

6
Almendarez-Torres, 523 U.S. at 235.
7
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000)(per curiam).
8
United States v. Huskey, 137 F.3d 283, 285 (5th Cir. 1998).
9
United States v. Fitzhugh, 984 F.2d 143, 146-47 (5th Cir.
1993), cert denied, 510 U.S. 895 (citing United States v. Garcia,
962 F.2d 479 (5th Cir. 1992) (noting absence of express holding on
this subject and opting for de novo review).
10
U.S. Sentencing Guidelines Manual § 4A1.2, cmt., n.3 (2000).
Although de novo review of the “same occasion” prong of the
guidelines’ test for relatedness remains applicable under Huskey,
supra, n.8, Fitzhugh, supra, n.9, and Garcia, supra, n.9, the
Supreme Court’s recent opinion in Buford v. United States, ___ U.S.
___, 121 S.Ct. 1276 (2001) requires “deferential review” of the

8
2. Same Occasion.

Moreno does not question that, in the sentencing calculus of

the guidelines, his criminal history score must include points for

prior sentences, pursuant to § 4A1.2. He complains only that the

points by which his criminal history score is increased for prior

sentences —— specifically, for those sentences imposed by the State

of Texas for Indecency with a Child —— should total only three for

sentencing court’s determination of the “consolidated for trial or
sentences” prong, at least when the question is “functional
consolidation.” See Buford, 121 S.Ct. at 1279 (quoting United
States v. Buford, 201 F.3d 937, 940 (7th Cir. 2000) (Easterbrook,
J.)). The Supreme Court’s opinion in Buford affirms the holding of
the Seventh Circuit in the case of the same name, which, after an
exhaustive review of the jurisprudence on the question of the
consolidation prong of the relatedness test, analogizes the issue
to one of mixed fact and law and ultimately rejects de novo review
in favor of “deferential review.” And, although the Supreme
Court’s Buford opinion does not specify the degree of deference to
be accorded to the sentencing court on the question of “functional
consolidation,” the Seventh Circuit’s Buford opinion ( which the
Court affirmed) does: After rejecting de novo review in favor of
deferential review, the Seventh Circuit concluded that “[t]he
district judge did not commit a clear error in finding that the
joint sentencing was a matter of administrative convenience rather
than a ‘consolidation for sentencing.’” Buford, 201 F.3d at 942
(emphasis added). Judge Easterbrook’s opinion thus expressly
applies the “clearly erroneous” standard, which is more deferential
than de novo but less deferential than abuse of discretion.
Important for today’s consideration, the Supreme Court’s ruling in
Buford —— dealing as it does with the consolidation prong only ——
does not mandate a change in our circuit precedent —— which has
consistently specified de novo review of the district court’s
determination of relatedness —— for consideration of the “same
occasion” prong of the test. Moreover, the distinctions and
reasoning of Buford, both in the Supreme Court and in the Seventh
Circuit, relative to consolidation are inapplicable to the
guidelines test’s disjunctive “same occasion” prong, which is
purely fact-based and, more importantly, is determined by the
district court’s review of the same cold record of prior
convictions and sentencing that the appellate court considers on
appeal. And, because we decide today’s “related case” issue solely
on the basis of the “same occasion” prong, we need not and
therefore do not address the consolidation prong which, after
Buford, we would be constrained to review under the more
deferential clear error standard.

9
both sentences, not three for each as assessed by the sentencing

court. This is so, he insists, because the state sentences were

imposed in related cases.

The operable provision of the guidelines is the disjunctive

test of the second sentence of application note 3 in the Commentary

accompanying § 4A1.2, which note reads in its entirety:

Related Cases. Prior sentences are not
considered related if they were for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). Otherwise, prior sentences are
considered related if they resulted from
offenses that (A) occurred on the same
occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for
trial or sentencing (emphasis added).

As Moreno does not pursue prong (B), and we do not reach prong (C),

our determination whether Moreno’s prior sentences for Indecency

with a Child are “related” turns on whether the offenses that

produced these sentences “occurred on the same occasion” within the

intendment of prong (A) of application note 3.

The guidelines do not define “related,” “occurred,” or

“occasion,” for purposes of § 4A1.2 in general or application note

3 in particular. Black’s Law Dictionary does not define “related.”

It does define “occur” (the verb of which “occurred” is the past

form) as, inter alia, “to happen,” “to take place,” and “to arise”;

and it does define the noun form of “occasion” as inter alia, “that

which provides an opportunity for the causal agency to act,” and

“meaning not only particular time but carrying idea of opportunity,

necessity, or need, or even cause in a limited sense.” The 1986

10
edition of Webster’s Third New International Dictionary,

Unabridged, defines “related” as inter alia, “connected by reason

of an established or discoverable relation,” or “having similar

properties”; defines the verb “occur” as inter alia, “to be present

or met with,” “exist,” “come to pass,” and “take place”; and

defines the noun “occasion,” as inter alia, a situation or set of

circumstances favorable to a particular purpose or development,” “a

circumstance, occurrence, or state of affairs that provide ground

or reason for something,” and “a particular time at which something

takes place: a time marked by some happening.” The upshot of all

this etymology is that we get no conclusive determination from

legal or general dictionaries, so we must apply the widely-used and

frequently-encountered words —— “related,” “occurred,” and

“occasion” —— in their common sense, conversational meanings. They

simply are not terms of art.

Given Moreno’s Dickensian experiences at the hands of his

paramour, his “common law mother-in-law,” and the paramour’s young

daughters at a time when they appear to have been mere pawns of

their grandmother, in the context of the jails, courts, and prisons

of Texas, together with his as yet unrequited redemption at the

hands of his recanting former accusers, it is no simple task to

determine “the facts” to which we must apply the “occurred on the

same occasion” prong of the guidelines’ test for related cases.

Only by engaging in the “willing suspension of disbelief”11 can we

11
Samuel Taylor Coleridge, Biographia Literaria, ch. 14,
reprinted in John Bartlett, Familiar Quotations 529 (14th ed.
1968).

11
settle on the appropriate facts to be factored into the test. When

we do so, however, we conclude that the facts and inferences on

which the state jury based its verdict of guilty on two counts of

Indecency with a Child have the following “sameness”: (1) The

offenses are precisely the same (indecency with a child); (2) they

occurred at precisely the same location (the couch in the front

room of the house shared by the defendant and the victims); (3)

they occurred not only on precisely the same day and during

precisely the same hour, but within minutes of each other; and (4)

they occurred without interruption, i.e., without the perpetrator’s

turning aside to any other activity. The only “separateness” in

the purported commission of the two offenses is the absence of

simultaneity and the existence of separate victims. Indeed, unless

only one small girl had been the “victim” of these two touchings,

or unless two young girls had been seated on the couch at the same

time and had been touched simultaneously by an ambidextrous

perpetrator, no more “related” occurrence on the same occasion can

be imagined. The case law bears this out.

There is not a surfeit of jurisprudence construing the “same

occasion” prong of the test for relatedness, but most opinions on

the subject emphasize the temporal aspect and rely only to a lesser

degree on the geographical or spatial aspect. In United States v.

Johnson,12 we construed the predecessor guideline phrase, “occurred

on a single occasion”13 and held that three offenses occurring on

12
961 F.2d 1188 (5th Cir, 1992).
13
The “single occasion” language (see U.S. Sentencing
Guidelines Manual § 4A1.2, cmt., n.3 (1990)) was replaced,

12
the same day —— DWI; driving with a suspended license; failure to

identify himself to a police officer —— all occurred on a single

occasion.14 Even though the DWI and suspended license charges were

moving violations and transpired simultaneously, the defendant had

ceased to drive, thereby terminating both moving violations, before

he committed the third offense, failure to identify himself.15

Expressly relying on the close temporal proximity of the commission

of the three offenses (and implicitly relying to a lesser degree on

the spatial proximity of the defendant’s presence in the car and

the car’s relatively short journey; and implicitly rejecting as

irrelevant or immaterial the fact that the defendant likely did not

form the mens rea to commit the failure-to-identify offense until

after he had ceased to commit the two prior offenses, thereby

purportedly completing one “occasion” before starting another), the

Johnson court had no trouble concluding that “[i]t seems evident”

that Johnson’s three offenses occurred on the same occasion.16

True, Johnson was convicted for committing three victimless

offenses as compared to Moreno’s convictions on two counts of

violating the same offense but with different victims for each

count; however, in both Johnson and Moreno, offenses were committed

effective November 1, 1999, with “same occasion” (see U.S.
Sentencing Guidelines Manual, app. C, amend. 382) (2000)) without
indicated or apparent change in the substantive meaning of the
phrase. If anything, “same occasion” impresses us as being
slightly broader and more flexible than “single occasion.”
14
Johnson, 961 F.2d at 1188.
15
Id.
16
Id. at 1189.

13
sequentially, albeit with but momentary temporal separations in

each case. Moreover, there was at least a little geographical

separation between the locations where Johnson committed his

offenses but none with Moreno’s, both of which took place in

precisely the same, small space: the same seat, on the same couch,

in the same room, in the same house. Some additional Johnson

support for a same-occasion conclusion for Moreno lies in the fact

that his two offenses were one and the same whereas Johnson

committed three separate and distinct offenses.

As Moreno correctly notes in his reply brief, the government

neither discusses nor cites Johnson, this circuit’s principal

jurisprudential authority —— an omission that is usually a sign of

weakness in an advocate’s position. And, even when relying solely

on authorities from other circuits, as it does here, the government

fails either to mention or cite the Seventh Circuit’s opinion in

United States v. Connor.17 The Connor court, like this court in

Johnson, relied largely on temporal proximity as the controlling

factor of the “same occasion” prong of the test when it found that

the defendant’s possession of weapons and possession of stolen

goods “on the same date” occurred on the same occasion.18

Rather than squarely addressing the close temporal relation of

the commission of the offenses in question, the government would

make much of the absence of simultaneity, contending that because

Moreno did not touch the little girls at precisely the same

17
950 F.2d 1267 (7th Cir. 1991).
18
Id. at 1270-71.

14
instant, the offense did not occur on the same occasion. As

observed by Moreno, however, the government’s reliance on the

Eleventh Circuit’s opinion in United States v. Jones19 to support

its simultaneity contention is misplaced. Jones does not stand

for the proposition that offenses must occur simultaneously to meet

the “same occasion” criterion; rather, Jones relies on the temporal

aspect, holding that offenses occurring one-and-one-half hours

apart in different geographic locations were “temporally distinct”20

and therefore did not occur on the same occasion.21

The government’s reliance on United States v. Williams22 is

likewise misplaced. The “same occasion” prong of § 4A1.2(a)(2)

was neither discussed in nor implicated by Williams because the

statute at issue there was the Armed Career Criminal Act (ACCA),23

and we have held that the “occasions different from one another”

provision of the ACCA is entirely different from the “same

19
899 F.2d 1097 (11th Cir. 1990), overruled on other grounds
by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993)(en
banc).
20
Id. at 1101.
21
Neither did the Eleventh Circuit in Jones make any reference
to the government’s other argument, that the lapse of time provided
the defendant with an opportunity to form a separate criminal
intent. Likewise, the government’s reliance on Jones as supporting
“separate victims” as a criterion for finding separate occasions is
misleading: The number of victims is not relevant to testing for
the “same occasion”; the number of victims can play a role only in
the “common scheme or plan” prong of the test for relatedness, an
issue that Moreno abandoned on appeal.
22
187 F.3d 429 (4th Cir. 1999).
23
18 U.S.C. § 924(e)(1)(2001).

15
occasion” prong of the relatedness test for purposes of calculating

a criminal history under § 4A1.2.24

In sum, the pertinent case law from this circuit and others

makes clear that simultaneity might support relatedness but that

its absence is anything but fatal. The same is true for multiple

victims. Neither simultaneity nor plurality of victims is an

essential element of sameness by any stretch. It follows that as

neither is a prerequisite for finding sameness, sequential

commissions of offenses affecting different victims can comprise a

single occurrence: Only the extent of the temporal separation

between commissions can be controlling for purposes of the same-

occurrence prong, and even then such separation must be viewed in

light of other factors such as spatial separation, identity or non-

identity of offenses, and the like. In addition to applying the

primary yardstick of temporal separation in light of all pertinent

circumstances, it must be applied with a healthy serving of common

sense. Ultimately, the greater the common-sense differences in the

other, non-temporal aspects of the facts and circumstances, the

shorter the temporal attenuation needed to eschew sameness of

occurrence.

III. Conclusion

As must be obvious by now, we answer in the affirmative the

question whether Moreno’s two state sentences for indecency with a

child result from “related cases” for purposes of guideline §

4A1.2. And we reach the same answer irrespective of whether we

24
United States v. Medina-Gutierrez, 980 F.2d 980, 982-83 (5th
Cir. 1992).

16
review the issue de novo or under the more deferential clear error

standard. Applying section (A) of application note 3 in the

Commentary under § 4A1.2 —— which specifies that cases are related

if they produce sentences for offenses that “occurred on the same

occasion” —— we are convinced that Moreno’s Texas sentences for

purportedly touching Marcia and Monica Garza inappropriately within

a matter of minutes and without moving from his seat on the couch

in the front room of the house in which they resided unquestionably

resulted from cases that are “related.” Even though the two

offenses were not committed simultaneously (but they almost were)

and were not committed against the same victim (but the victims

were closely related to each other and had a relationship with the

defendant), they were the identical offense, were committed at the

identical geographic location, and were barely separated in time ——

literally by a matter of minutes. Emphasizing temporal proximity

but in pari materia with all other pertinent facts, we are firmly

convinced that the cases are “related” for purposes of § 4A1.2.

Failure to treat the two cases as related in calculating

Moreno’s Criminal History Category produced an erroneously high

sentencing range. Moreno’s criminal history score should have been

increased by only three points, not six, because his sentence

resulted from related cases. We therefore vacate Moreno’s sentence

and remand for resentencing within a sentencing range of 57-71

months, the range produced when a criminal history score of 7

17
rather than 10 is used to reach a Criminal History Category of IV,

and is applied in conjunction with his offense level of 21.25

SENTENCE VACATED; REMANDED FOR RESENTENCING.

25
Having thus found that the two prior sentences are related
because they resulted from cases that occurred on the same
occasion, we need not reach and therefore do not address Moreno’s
alternative argument that the state indecency convictions were
consolidated for purposes of trial.

18